United States v. Casey , 825 F.3d 1 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 13-1839
UNITED STATES,
Appellee,
v.
LASHAUN CASEY,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Thompson, Hawkins,* and Barron,
Circuit Judges.
Linda Backiel on brief for appellant.
Mariana E. Bauzá, with whom Rosa Emilia Rodríguez-Vélez,
United States Attorney, Nelson Pérez-Sosa, Assistant United States
Attorney, Chief, Appellate Division, Thomas Klumper, Assistant
United States Attorney, Senior Appellate Counsel, and Susan Z.
Jorgenson, Assistant United States Attorney, were on brief for
appellee.
* Of the Ninth Circuit, sitting by designation.
June 3, 2016
HAWKINS, Circuit Judge. Lashaun Casey appeals his
conviction by jury trial and life sentence for the death of an
undercover police officer during a drug buy. His appeal raises a
host of challenges to rulings issued throughout his pretrial and
trial proceedings, and urges he be granted a retrial. For the
reasons described in the opinion that follows, we affirm.
I. Background
A. Facts
The overarching series of events giving rise to this
appeal are not in dispute. Contested issues pertinent to Casey's
arguments on appeal, and the appropriate standard of review for
each, are addressed in the Discussion sections below. While the
record is brimming with numerous additional details, we keep our
synopsis relevant to the questions we have been asked to consider.
In 2005, Puerto Rico Police Department ("PRPD") Agent
Jesús Lizardi-Espada ("Lizardi") was assigned to investigate Casey
undercover. He eventually arranged with Casey's assistance to
purchase four pounds of marijuana on the island of Culebra in the
morning hours of August 1, 2005, from the drug supplier Alexander
Hernández. Lizardi and Casey were to drive to Fajardo, from where
they would take a ferry to Culebra to meet Hernández. A law
enforcement team led by Lizardi's supervisor, Agent José Agosto-
Rivera ("Agent Agosto"), traveled to Culebra by plane to await
Lizardi and Casey's arrival.
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When Agent Agosto did not see Lizardi and Casey arrive
on the ferry as planned, a search for Lizardi commenced. Later
that day, Agent Agosto found Casey at his workplace, a Holiday Inn
in Isla Verde, and spotted Lizardi's gray Ford truck in the hotel
parking lot. Upon leaving the Holiday Inn in Lizardi's truck,
Casey was arrested and taken to PRPD general headquarters, where
he was read his rights, signed a Miranda waiver, and began being
questioned. Casey, who remained in PRPD custody until midday the
following day, was moved to a PRPD precinct in Canóvanas and later
to one in Luquillo. At some point, Casey told officers he was no
longer interested in talking with the police.
While Casey was in PRPD custody, Casey's grandparents
Mr. and Mrs. Rivera, with whom he lived, permitted law enforcement
officers to search his bedroom without a warrant. In it, the FBI
discovered a loaded firearm inside a jacket pocket, Lizardi's cell
phone, and a pair of blood-stained flip flops. Casey was
subsequently transferred from PRPD to FBI custody in Ceiba, where
he was confronted with this evidence, and in the course of further
questioning, requested an attorney. It was there that his common-
law wife, Crystal Peña ("Peña"), came to visit him. Statements
Casey made to her during their exchange were overheard by law
enforcement, and later admitted as evidence against him.
Further investigation revealed that on the morning of
August 1, 2005, Luis Algarín ("Algarín"), a cashier working at the
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marina parking lot in Fajardo from which ferries to Culebra depart,
witnessed a person he later identified in a photo array as Casey
drive up to his booth in a gray truck, request to leave after
losing his parking lot ticket, and pay with a twenty-dollar bill.
Another parking lot employee, Peter Ávila-Natal, also observed on
that same day in the lot a pick-up truck missing a driver's side
window, and glass dust on the truck driver's elbow. The FBI
recovered from the Fajardo parking lot a car window with what
appeared to be a bullet hole in the middle, and a projectile which
was later matched to the gun found in Casey's bedroom.
Law enforcement procured a warrant and searched
Hernández's residence. A cadaver dog, trained to help locate
decomposing bodies, gave alerting signals both inside and outside
the residence. Officers questioned Hernández and seized several
items, including a pair of muddy boots, pants, a glove, soil
samples, and floor mats, from the premises.
Lizardi's backpack was then discovered in Luquillo, down
the road from Hernández's home, at a location also just a mile
from where Casey lived. It contained clothes and a towel with
hair on it that law enforcement concluded was not Casey's, although
no tests were conducted to ascertain whose hair it was. A few
days later, Lizardi's body was also found in Luquillo, down a hill
in a wooded area behind an abandoned structure that contained
traces of blood. FBI analysis identified DNA from swabs taken of
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the abandoned structure, Lizardi's truck, the twenty-dollar bill
from the parking lot, and the blood-stained flip-flops, as
Lizardi's.
B. Procedural History
In February 2007, a grand jury returned a three-count
indictment charging Casey with (1) carjacking with the intent to
cause death or serious bodily injury (18 U.S.C. § 2119(3)); (2)
possession, use, discharge, carrying of firearms during a crime of
violence resulting in another's death (18 U.S.C. § 924(j)); and
(3) being a felon in possession of a firearm (21 U.S.C. §
922(g)(1)). Casey pleaded not guilty on all counts. That July,
the government filed a notice of intent to seek the death penalty.
Pretrial proceedings took place over six years, mostly
concerning the death penalty. Suppression motions were heard in
the fall of 2011 and rulings issued in January 2013. Casey moved
to suppress the evidence discovered in his bedroom on the ground
that his grandparents had neither actual nor apparent authority to
consent to the warrantless search, arguing the search was unlawful
and the evidence it yielded inadmissible. Finding that the room
routinely remained unlocked and that Casey's grandparents had
permission to enter it on a regular basis, the district court
denied this motion. Casey also moved to suppress Algarín's photo
array identification from the Fajardo parking lot; statements
elicited from him allegedly in violation of his Miranda rights;
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words he exchanged with his wife while in custody; and photos of
Lizardi's decomposing body. These motions were denied as to all
but certain statements the district court concluded Casey made
after invoking Miranda protections.
In September 2012, the district court held a hearing on
ethical misconduct allegations lodged by the government against
defense counsel. Casey's subsequent motion to disqualify the
district court judge based on claims of impartiality and improper
ex parte communication with the government was denied.
Juror questionnaires were completed in October and
November 2012. Voir dire was held in February 2013. The district
court rejected Casey's Batson challenge to the government's
peremptory strikes of three black panelists. Trial then commenced
in March.
Casey argues that a number of erroneous rulings at trial
amounted to a violation of his right to confrontation and to
present a defense. In particular, he contends it was improper to
preclude evidence which would have shown that the PRPD declined to
properly investigate the possible involvement of Hernández, the
dealer with whom the August 1, 2005, drug buy had been arranged,
in Lizardi's death. The subject of such purported evidence
included a PRPD internal investigation into its own possible
negligence in the planning and execution of Lizardi's undercover
operation.
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After nine days of trial, the jury returned a verdict of
guilty as to all counts but rejected the death penalty. A judgment
of conviction was entered on June 13, 2013, and Casey was sentenced
to life in prison. This appeal followed.
II. Discussion
A. Prosecution's Use of Peremptory Challenges
Casey, a black American transplant from Brooklyn to
Puerto Rico, argues the district court erred in finding no equal
protection violation in the government's exercise of peremptory
challenges to exclude three black persons from the jury, he claims,
solely on the basis of race.
1. Batson Challenge
In Batson v. Kentucky, the Supreme Court reaffirmed the
longstanding principle that a criminal defendant's equal
protection rights are violated when jury selection at his trial is
"affected by invidious racial discrimination." United States v.
Girouard, 521 F.3d 110, 112 (1st Cir. 2008). The "[e]xclusion of
black citizens from service as jurors," stated Batson,
"constitutes a primary example of the evil the Fourteenth Amendment
was designed to cure." Batson v. Kentucky, 476 U.S. 79, 85 (1986).
While Batson initially focused on whether the defendant or an
excluded juror was part of a cognizable racial group, subsequent
cases broadened Batson doctrine to encompass an individual juror's
right not to be discriminated against -- making the relevant query
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whether "a peremptory challenge was based on race." See Sanchez
v. Roden, 753 F.3d 279, 292 (1st Cir. 2014) (quoting Snyder v.
Louisiana, 552 U.S. 472, 476 (2008)).
Batson outlined a three-part burden-shifting framework,
a "Batson challenge," through which a defendant can dispute the
government's use of peremptory strikes as racially motivated and
demonstrate an equal protection violation. See Foster v. Chatman,
No. 14-8349, 2016 WL 2945233 at *8 (U.S. May 23, 2016). The
defendant is required to first make a prima facie showing that
race formed the basis for a peremptory challenge. The trial court
must consider all relevant "circumstantial and direct evidence of
intent as may be available" to determine whether an inference of
racial motivation may be drawn. Batson, 476 U.S. at 93, 96
(quoting Arlington Heights v. Met. Hous. Dev. Corp., 429 U.S. 252,
266 (1977)). For instance, a "pattern" of strikes against black
jurors, a "prosecutor's questions and statements during voir dire
examination and in exercising his challenges," Sanchez, 753 F.3d
at 292 (quoting Batson, 476 U.S. at 97), or the light a later
strike may shed on an earlier one, can support an inference of
discriminatory purpose, Snyder, 552 U.S. at 478 (noting that
persisting doubt as to a particular strike requires the court to
consider another strike for the bearing it might have on the
previous challenge); United States v. Charlton, 600 F.3d 43, 55
(1st Cir. 2010) (Lynch, C.J., concurring) (noting that seemingly
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permissible individual strikes may need "a second look" if, when
taken together, they "create a concern that certain groups are
underrepresented").
If the defendant makes out a prima facie case, the burden
then shifts to the prosecution to offer an explanation for striking
the juror in question. The proffered explanation must not only
be racially neutral, but also "related to the particular case to
be tried." Sanchez, 753 F.3d at 292-93 (quoting Batson, 476 U.S.
at 98). Finally, based on these showings, the trial court must
decide whether the defendant has demonstrated purposeful
discrimination. Miller–El v. Cockrell, 537 U.S. 322, 328-29
(2003).
Statistical evidence is frequently used to show
impermissible discrimination. Courts look to the percentage of a
particular racial group removed from the venire by the strikes at
issue, and the percentage of strikes directed against members of
that group. Aspen v. Bissonnette, 480 F.3d 571, 577 (1st Cir.
2007). A prosecutor's intent may also be discerned by comparing
the treatment of white and non-white panelists. An instance where
a prosecutor's stated reason for striking a non-white potential
juror would apply to a white panelist who was permitted onto the
jury could serve as evidence of purposeful discrimination at the
final step of a Batson challenge analysis. Miller-El v. Dretke,
545 U.S. 231, 241 (2005); Aspen, 480 F.3d at 577.
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Here, the district court did not specifically find, but
rather assumed, that Casey satisfied his burden at Batson's first
step to show a prima facie case of discrimination. According to
Casey, however, the district court nevertheless committed clear
error at the third step by accepting at face value the prosecutor's
race-neutral explanations, rather than offering the defense an
opportunity to expose the explanations as pretextual. While we
conclude a Batson error was in fact committed here, because the
error was without doubt harmless, we affirm.
2. Standard of Review for Batson Challenge Ruling
We review a district court's factual determination that
the government was not motivated by race for clear error, and may
reverse only where we arrive at a "definite and firm conviction
that a mistake has been committed." United States v. González-
Meléndez, 594 F.3d 28, 35 (1st Cir. 2010); Charlton, 600 F.3d at
50. We are mindful that only the trial court observed first-hand
"the demeanor of the attorney who exercise[d] the challenge, along
with whether [each stricken panelist's] demeanor can credibly be
said to have exhibited the basis for the strike." United States
v. Mensah, 737 F.3d 789, 796 (1st Cir. 2013) (internal quotation
marks omitted).
3. Voir Dire
The jury pool contained 457 individuals, 13 of whom self-
identified as black, 4 as black/Hispanic, and 1 as Puerto
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Rican/black (18 total black). The rest of the pool contained 256
Hispanic/Latino persons, 30 Caucasian, 58 no
answer/unrecognizable, and small numbers of other race/ethnicity
combinations. Of the 18 panelists who self-identified as black,
13 were not called or were excused at parties' stipulation. Of
the remaining 5, Casey and the government each struck 2 and 1 was
chosen as an alternate.
The 2 self-identified black jurors stricken by the
government were numbers 182 and 354.1 Casey moved to reinstate
those two. He also moved to reinstate stricken Juror 175, who had
not self-identified as black, but rather as "Latin." Casey
nevertheless himself claimed this potential juror was black,
arguing that she appeared dark-skinned, spoke in a manner
consistent with being black, and was Brooklyn-born.
The government responded that these three jurors were
stricken not for race-based reasons, but because they had
demonstrated they were incapable of serving on the jury in a death
penalty-eligible case. Specifically, it stated all three had
indicated an unwillingness to apply the death penalty according to
the law or in the facts of the instant case, even if the government
could prove them true.
1 Jurors 182 and 354 had identified themselves as "black" and
"black Hispanic," respectively.
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Crediting the government's race-neutral explanations for
its peremptories, the district court denied Casey's challenge. It
held that because Juror 175 had not self-identified as black, Casey
failed to make a prima facie case of purposeful discrimination;
but that even if she was black, "she expressed reluctance to apply
the death penalty in cases where the victim was not a child,
elderly, or otherwise a defenseless victim." As for Juror 182,
who self-identified as "Catholic (Black)," the district court
looked to his statement on his questionnaire and at voir dire that
the death penalty "is inhuman." Finally, with regard to Juror
354, who first identified as Hispanic and later modified this to
"Hispanic black," the district court concluded the government's
peremptory strike was not racially motivated because her response
to a hypothetical in which a defendant killed an unarmed law
enforcement officer was that life in prison, not the death penalty,
would be the appropriate punishment; Juror 354 did, however, say
she could take into account other aggravating factors to consider
the death penalty.
4. Discussion
There was no clear error in rejecting Casey's Batson
challenge on its merits. The district court was not convinced
Casey made out a prima facie case, but nevertheless assumed as
much, and proceeded to reject Casey's challenge at Batson's
subsequent steps.
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This was fortunate because the record demonstrates a
Batson error was in fact committed here, and we would be remiss
not to address it even though it changes little for Casey.
Specifically, the parties and the district court labored under the
misimpression that the defendant must be of the same race as the
stricken juror in order to raise a Batson challenge. The district
court even denied one of Casey's challenges on this very basis.
This runs afoul of Powers v. Ohio. 499 U.S. 400, 402 (1991) ("[A]
criminal defendant may object to race-based exclusions of jurors
effected through peremptory challenges whether or not the
defendant and the excluded juror share the same races.").
The error was, nevertheless, harmless. Casey, whose
Batson challenge was based almost entirely on numbers alone,
stresses that the prosecution's use of 3 of its 14 peremptory
challenges on blacks "strongly suggests that something more than
chance was at work." But the venire contained very few persons
who self-identified as black to begin with, especially after the
various excusals and stipulated dismissals. This is materially
different from where "the numbers are larger and the pattern is
inescapably apparent." Mensah, 737 F.3d at 801.
Casey's arguments on appeal misstate the statistics at
the crux of his argument. For instance, he claims the government's
use of the 3 of its 14 peremptories against black prospective
jurors constituted 42 percent of its peremptories; the actual
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figure is 21 percent. He also asserts that 6.3 percent of the
prospective jurors called for individual voir dire were black (14
out of 222); but he does not contest the government's
representation that 18 individuals out of the entire 457-person
venire pool self-identified as "Black or mixed Black race" –- which
comes out to 3.9 percent of the pool. And just 3.7 percent of
that pool (12 regular jurors and 5 alternates, 17 altogether out
of the 457-person venire) made it onto the jury. "Thus, as is
common, the numbers considered in isolation are inconclusive in
determining whether [Casey] met his burden on step one." Sanchez,
753 F.3d at 303 (quoting Mensah, 737 F.3d at 802).
Casey's attempts to compare the opinions about the death
penalty shared by stricken panelists and non-black venirepersons
are also to no avail. First, he made no such argument before the
district court. And on appeal, he declined to place it in his
opening brief (which instead focuses on faulting the government
for failing to strike other non-black jurors who were in favor of
the death penalty). Only in his reply brief does he attempt to
liken opinions of two stricken black panelists with those of non-
black persons who were permitted to serve on the jury. Not only
are arguments raised for the first time in an appellate reply brief
ordinarily deemed waived, United States v. Eirby, 515 F.3d 31, 36
n.4 (1st Cir. 2008), the evidence underlying these arguments is
hardly conclusive and would not pass the rubric of plain error
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review which applies to contentions raised for the first time on
appeal, United States v. Matos, 611 F.3d 31, 35 (1st Cir. 2010).2
Against Casey's scant evidence of discriminatory intent,
we see no reason, nor do we see evidence in their questionnaires
or voir dire testimony, to question the legitimacy of the
government's proffered reasons for doubting the three jurors'
abilities to impose the death penalty in accordance with the law,
described above. Finally, it is simply untrue that the district
court denied Casey an opportunity to argue the government's
explanations for its strikes were pretextual. Casey's attorney
did respond to the government's justifications for its strikes,
simply stating that the reasoning offered "was not a valid basis
to strike jurors." Had Casey wished to share additional arguments
concerning pretext, he declined his chance to do so.
Finding no clear indications of purposeful
discrimination in the record, we affirm the rejection of Casey's
Batson challenge.
2 For instance, while Juror 177 did, like Juror 354, express that
the death penalty should be virtually automatic in cases involving
the murder of a child or elderly person, Juror 177 circled "1" on
a 1-10 scale on favor for the death penalty, 1 being the most
strongly in favor of the death penalty a respondent could be. Juror
354, by contrast, circled "5," reflecting she was undecided.
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III. Fourth Amendment Challenge to Casey's Bedroom Search
Casey claims error in the denial of his motion to
suppress evidence seized from his bedroom located in his
grandparents' home, because, he argues, the search was made without
proper consent.
A. Third-Party Consent to Warrantless Searches
The search of a person's home conducted in the absence
of a warrant issued upon probable cause is presumptively
unreasonable, but may be deemed permissible with valid consent.
United States v. Vázquez, 724 F.3d 15, 18 (1st Cir. 2013). A
prosecutor who seeks to rely on the lawfulness of a search bears
the burden to show the consent was "freely and voluntarily given."
Bumper v. North Carolina, 391 U.S. 543, 548 (1968). The
voluntariness of a consent to search turns on an assessment of the
totality of the circumstances. United States v. Mendenhall, 446
U.S. 544, 557 (1980). "Among the individualized factors bearing
on the vulnerability of the consenting party are age, education,
experience, intelligence, and knowledge of the right to withhold
consent." United States v. Barnett, 989 F.2d 546, 555 (1st Cir.
1993).
Consent is legally unavailing if given by a person who
does not have authority to do so. The consent of one who possesses
"common authority" over premises or effects, or some other
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sufficient relationship to the premises or effects, is valid as
against the absent, nonconsenting person with whom that authority
is shared. Schneckloth v. Bustamonte, 412 U.S. 218, 245-46
(1973).
Common authority is not, however, to be implied from the
mere property interest a third party has in the property. See
Stoner v. California, 376 U.S. 483, 487-88 (1964) (finding the
warrantless search of a hotel room by consent of the hotel clerk,
absent the guest's consent, unlawful); Minnesota v. Olson, 495
U.S. 91, 96-97 (1990) (finding that a defendant's status as an
overnight guest in the upper unit of a duplex home was sufficient
for him to claim a protected privacy interest in the premises,
even though he was not given a key or left alone in the unit, and
did not pay for his stay).
Rather, common authority arises from having a shared
privacy interest in the premises or effects to be searched. United
States v. Matlock, 415 U.S. 164, 171-72 (1974) (reasoning that
through mutual use -- as opposed to mere joint access -- of the
subject property, all co-inhabitants have assumed the risk that
one among them might permit a search of their shared space); United
States v. DiPrima, 472 F.2d 550, 551 (1st Cir. 1973) (finding
search of defendant's room in his mother's house at the mother's
consent lawful, where his younger brother shared the room and his
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mother used the room's closet, and defendant was present upon
officers' entry of the room and made no objection).
Yet, even where a party who gave consent did not have
authority to do so, a search is not unlawful if the searching
officer had a mistaken -- but objectively reasonable -- belief the
party in fact had the requisite authority. Thus "when the
invitation is accompanied by an explicit assertion that the person
lives there," the relevant question is whether "the surrounding
circumstances could conceivably be such that a reasonable person
would doubt its truth and not act upon it without further inquiry."
Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990) (finding search
lawful due to "apparent authority," where a former co-tenant of
the defendant suggested to police she lived there, calling it "our
apartment," and used her key to bring them inside, where they found
the defendant with drug paraphernalia and cocaine).
B. Standard of Review
This court reviews the ruling on suppression de novo,
accepting its underlying factual findings unless clearly
erroneous. United States v. Wurie, 728 F.3d 1, 2–3 (1st Cir.
2013). The issue of consent to search is reviewed de novo. United
States v. Schaefer, 87 F.3d 562, 565 (1st Cir. 1996).
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C. Background
The parties agree that the day after Casey's arrest and
while he was in custody, PRPD and FBI agents obtained consent from
Casey's grandparents, the Riveras, to search Casey's bedroom in
their house, where Casey had resided since 2002. PRPD agents
found the room door open, and taped it off upon arrival to preserve
the room for the FBI to inspect.
The district court was faced with conflicting testimony
from Mr. Rivera, on the one hand, and Agent Marrero and Lieutenant
Nazario of PRPD and FBI Special Agent Villareal, on the other. It
decided to afford "more credence to the testimony provided by [the
officers than by] Rivera." In doing so, it reasoned that Mr.
Rivera had contradicted himself about his employment status and
admitted he had illegally avoided paying taxes, and further that
while Mr. Rivera had motive to lie to protect his grandson, the
testifying officers had no similar stake in the case.
At the suppression hearing, Mr. Rivera testified that
the room was used only by Casey and contained only his personal
belongings; that Casey paid rent whenever he was working; that the
door had a lock and Mr. Rivera had a key to use only for
emergencies; that Casey had told his grandmother Mrs. Rivera she
could not enter the room, even to clean, and once moved out because
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she had entered for housekeeping purposes; and that the officers
made him nervous.
Agent Villareal's rebuttal testimony portrayed the
situation quite differently. On the stand, he first recounted his
conversation with Mr. Rivera, who appeared "comfortable and
cooperative," and "wholeheartedly agreed" to an FBI search of the
house. According to Agent Villareal, Mr. Rivera said Casey "could
not afford to maintain his own household and provide his own food,"
so he received lodging and food "for free" with the Riveras. Agent
Villareal further recalled that, when asked whether Casey lived in
a specific room of the house, Mr. Rivera responded that Casey
indeed resided in a room in the "posterior part of the house."
Its "door did not have a lock," said Mr. Rivera, and both Riveras
"had free access to the room at all times, since it was their
residence." Agent Villareal's testimony then shifted to his
conversation with Mrs. Rivera, who provided him with aligning
information. She told Agent Villareal that Casey "did not have
enough income . . . to support himself and had to live with [the
Riveras] . . . rent free and was provided food by [the Riveras]."
Mrs. Rivera also said to Agent Villareal that Casey's room "did
not have a lock" and she "was free to come and enter at will."
Agent Marrero, who arrived at the Rivera home before the
FBI, similarly testified that when she got there, Mrs. Rivera said
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she had "no problem" with Agent Marrero's presence, or the search
of the residence to which Mr. Rivera had given consent at the
police station. Agent Marrero further recalled finding the door
to Casey's room open, and taping it off to preserve evidence while
she waited for the FBI to arrive. When Agent Marrero asked who
could go into and use the room, Mrs. Rivera replied, "[o]nly the
three of them."
While Agent Nazario did not specifically recall Mr.
Rivera's response about who could enter the room, he, like the
other agents, testified that Mr. Rivera readily offered consent
and gave Agent Nazario no reason to believe he lacked authority to
do so. "[O]n the contrary," testified Agent Nazario, "Mr. Rivera
always identified himself as the owner of the house and as the one
who can authorize [a search]." Agent Nazario furthered that Mr.
Rivera "represented himself to be . . . the one that ordered people
around there."
In deeming the search lawful, the district court
emphasized heavily that Casey's grandparents cooperated fully with
the search, readily giving both oral and written consent, and
expressed no hesitation or lack of authority. It, in addition,
relied on the law enforcement officers' testimony to conclude that
Casey did not pay rent and did not lock his door, and that the
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Riveras "had joint access to [Casey's] bedroom."3 The district
court concluded that Casey's grandparents had both actual and
apparent authority to consent to the search of Casey's room.
D. Discussion
Casey argues that his grandparents did not have the
requisite authority to consent to the search. He bases this solely
on Mr. Rivera's on-the-stand statements, which differ materially
from what the Riveras told officers prior to the search at the
Rivera home. Indeed, the law enforcement officers recount that
the Riveras affirmatively indicated they could freely enter and
exit the room and treated it as a part of their home, and never
once did the Riveras do or say anything to suggest otherwise.
There was no clear error in giving greater credence to
the three agents' testimony than to Mr. Rivera's. While their
statements do differ materially from Mr. Rivera's assertions on
the stand, the district court offered reasoning to back up its
determination: "Rivera . . . has close ties to defendant . . .
[and] may have been inclined to [protect] his grandson by providing
testimony . . . inconsistent with the information which he
previously gave to law enforcement agents . . . ." Mr. Rivera
3 The district court also found that the Riveras "entered [Casey's]
room regularly." Casey challenges this finding as clearly
erroneous. We need not resolve his challenge, as we do not rely
on this finding for our holding.
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changed his tune between the time the officers asked to search
Casey's room -- when he readily shared that he had full access to
the room and authority to consent to its search –- and the moment
he took the stand at the suppression hearing. That Mr. Rivera
contradicted himself about his employment status provided further
reason to discredit his on-the-stand statements.
The question is thus whether the district court was
correct that the officers' testimony established that the Riveras
had common authority to consent to the search of Casey's bedroom.
The officers appear to have asked the Riveras very few questions.
We encourage law enforcement officers in the future to obtain
sufficient facts about a given living situation to not only give
them the ability to assess the validity of third-party consent
before initiating a search, but also to allow a reviewing court to
make an assessment in the event that consent is later challenged.
Nevertheless, the facts that the officers had before
them at the time of the search gave them sufficient reason to
believe that the Riveras had full "run of the house," see United
States v. Clutter, 914 F.2d 775, 777 (6th Cir. 1990), and
concomitant authority to permit the search. The facts before the
officers -- that the door to Casey's room was unlocked and open,
that Casey did not contribute to rent or food, that Mrs. Rivera
could enter the room "at will," and that Mr. Rivera "ordered people
around" at the house and "had free access to the room at all
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times" -- permitted the officers to infer that there was an
arrangement in the residence that the Riveras could enter Casey's
room if and when they wished. The Riveras' statements at the time
of the search about their access to the room suggested a
relationship a reasonable person could conclude is more akin to
that between co-tenants, see Rodriguez, 497 U.S. at 179-80, than
that between a hotel clerk and guest, see Stoner, 376 U.S. at 488.
We thus agree with the district court that the Riveras had apparent
authority to consent to the search, and we do not reach the
question whether the Riveras had actual authority as well.
In so holding, we note that the facts of this case are
different from those in United States v. Whitfield, 939 F.2d 1071
(D.C. Cir. 1991), one of the cases on which Casey relies. In
Whitfield, the court held that a mother did not have apparent
authority to consent to the search of her adult son's room. Id.
at 1075. But there was no evidence that the mother said, as Mrs.
Rivera did here, that she could come and go from her son's room
"at will." Nor did Whitfield involve evidence that the mother
represented herself to be the one who "ordered people around" at
the house, as Mr. Rivera did. The court in Whitfield assumed that
the officers in that case could infer only that the mother
"generally" had "joint access" to the room, and so had the
"ability" or "legal right, to enter" that room, id. at 1074 -- an
inference that seemed to rest on little more than the facts of her
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ownership and the door being unlocked. Here, by contrast, the
statements made by the Riveras when questioned by the officers
permitted the inference that there was an arrangement in the house
whereby the Riveras could come and go from Casey's room at will.
Finally, Casey's contention that the Riveras' consent
was not voluntary fails. While Mr. Rivera did testify that the
presence of numerous officers at his home made him nervous, the
record contains no suggestion that Mr. Rivera was coerced or
threatened, or that he did not comprehend the officers' questions.
He gave consent both at the police station before agents arrived
at his home, and again just before the search commenced. He also
did so in both English and in Spanish, orally and in writing.
Moreover, according to the officers' testimony, the Riveras both
appeared comfortable and at ease with the presence of law
enforcement in their home. Accordingly, we affirm the district
court's denial of Casey's motion to suppress evidence discovered
in his bedroom.
IV. Parking Lot Cashier's Photo Array Identification
Casey next challenges the order denying his motion to
suppress the photo array identification made by Algarín, the marina
parking cashier, as unduly suggestive. According to Casey,
Algarín was subject to undue pressure upon making the
identification. Casey additionally argues that he was not only
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the darkest-skinned man in the array, but was the only black non-
Latino, and thus the only individual pictured with "a distinct,
long, thin facial structure, lacking the broad, flat face and wide
cheekbones typical of Latinos of African descent." He further
objects because there was no in-court identification subsequent to
the pre-trial array identification; Algarín merely authenticated
the array he had earlier initialed.
A. Validity of Out-Of-Court Identifications
A court should exclude an out-of-court identification
based on a photo array only in those "extraordinary cases" where
there is "a very substantial likelihood of irreparable
misidentification," a situation which could result in an unfair
trial in violation of the defendant's due process rights. United
States v. Henderson, 320 F.3d 92, 100 (1st Cir. 2003) (quoting
United States v. de Jesus-Rios, 990 F.2d 672, 677 (1st Cir. 1993)).
"Short of that point, such evidence is for the jury to weigh . . .
for evidence with some element of untrustworthiness is customary
grist for the jury mill." Manson v. Brathwaite, 432 U.S. 98, 116
(1977).
The defendant bears the burden to establish an out-of-
court identification was infirm. A two-step analysis is applied
to such contentions: (1) whether an "impermissibly suggestive"
procedure was used, and (2), if so, whether the identification was
-27-
nevertheless reliable under a "totality of the circumstances."
United States v. Rivera-Rivera, 555 F.3d 277, 283 (1st Cir. 2009).
Factors pertinent to this second step include
(1) the opportunity of the witness to view the criminal
at the time of the crime; (2) the witness' degree
of attention to the crime; (3) the accuracy of the
witness' prior description of the defendant; (4)
the level of certainty demonstrated by the witness
at the confrontation; and (5) the length of time
between the crime and confrontation.
United States v. DeCologero, 530 F.3d 36, 62 (1st Cir. 2008)
(quoting Henderson, 320 F.3d at 100).
B. Standard of Review
District court decisions denying motions to suppress
pre-trial identifications are reviewed de novo, but with deference
to any findings of fact. United States v. Brennick, 405 F.3d 96,
99-100 (1st Cir. 2005).
C. Facts
A few days after the search for Lizardi commenced, in an
interview with an FBI agent, Algarín described the driver of the
gray truck from whom he had accepted the twenty-dollar bill as "a
black male, approximately 25 years old, of average height with a
slim build and black hair."
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About five weeks later, Algarín was shown an array of
six photos by another FBI agent, Agent Moulier, and asked if he
could identify the person he had described. Agent Moulier
testified at the suppression hearing that the photo array
identification took place at Algarín's home in the presence of
Moulier and three other officers.4
Casey's photo appeared in the middle of the top row of
three photos, with another row of three photos below it. After
about two minutes of studying the array, Algarín picked out Casey's
picture.
Algarín did not testify at the suppression hearing. At
trial, Algarín was again shown the photo array that he had marked
with his initials eight years prior and repeated his identification
of Casey's photo.
D. Application
Casey offers no reason to believe, as he asserts, that
"[t]he pressure on Algarín to make an identification . . . was
undeniably overwhelming." The circumstances of the pre-trial
identification were not unduly suggestive. The array contained
4 According to Algarín's trial testimony, however, this took place
at the home of the parents of Algarín's boss, whose brother was an
agent seated at counsel's table during trial.
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six black-and-white photos. As the district court noted, while
Casey had the darkest complexion among them, each individual could
have been described as black, and they shared relatively similar
facial features, a near-identical haircut, and groomed eyebrows.
See DeCologero, 530 F.3d at 62 (while officers creating a photo
array must make "every effort reasonable under the circumstances"
to conduct a "balanced representation," they need not "search for
identical twins"). The array displayed no names, and bore a
disclaimer in Spanish and English stating that the person the
witness saw may or may not appear among the presented pictures.
Agent Moulier testified the array was prepared according to "policy
about the race, sex, skin color of the person," based on the
descriptions Algarín and other parking lot witnesses gave of the
gray truck's driver. While the record contains no documentation
of the array assembly procedure or any report about the
identification process, Casey points us to no authority requiring
the government provide such evidence -- a point especially
important here, where the defense bears the burden to demonstrate
the identification was infirm. Nor does Casey suggest the
officers who created the photo array and spoke to Algarín employed
any improper suggestive or coercive tactics.
Even had the circumstances of the array identification
been unduly suggestive, the identification was nevertheless
reliable. Algarín had occasion to commit the truck driver's face
-30-
to memory during their interaction regarding the driver's lost
ticket, which prompted Algarín to ask for the driver's name,
address and phone number for a lost ticket form. The driver,
furthermore, was unable to provide his license or registration
documents, and told Algarín to keep the change from a twenty-
dollar bill tendered for a parking fee Algarín testified could not
have been more than two or three dollars.
Also, while general, Algarín's description of the driver
is consistent with his selection from the photo array, made a few
weeks after his earlier contact with a driver leaving a significant
gratuity. See id. at 61-63 (finding no issue with an array
identification made two to three years after the incident). The
district court thus did not err in denying Casey's motion to
suppress this photo array identification evidence, and we affirm
its ruling.
V. Miranda Challenge to Admission of Statements Made to
Officers While in Custody
Casey next appeals the order granting in part and denying
in part his motion to suppress statements he made while in custody.
He contends the district court erred in failing to suppress
statements elicited by interrogation after he invoked his right to
remain silent, and in its factual determination of when Casey
invoked his right to an attorney. The district court further
-31-
erred, argues Casey, in finding admissible statements overheard by
a law enforcement officer that Casey made to his wife, Crystal
Peña, while in custody.
A. Miranda Rights
Admissibility of statements made after the right to
remain silent has been invoked depends on whether, under a totality
of the circumstances, the right was "scrupulously honored."
Michigan v. Mosley, 423 U.S. 96, 104 (1975). In addition, Miranda
protection extends to statements made in response to "any words or
actions on the part of the police . . . that [they] should know
are reasonably likely to elicit an incriminating response." Rhode
Island v. Innis, 446 U.S. 291, 301 (1980).
B. Standard of Review
This court reviews matters of law related to denial of
a motion to suppress de novo, while reviewing underlying findings
of fact only for clear error. We must uphold the district court's
denial of a motion to suppress if any reasonable view of the
evidence supports doing so. United States v. Rojas Tapia, 446
F.3d 1, 3 (1st Cir. 2006).
C. Facts
Upon his arrest, Casey was taken to PRPD headquarters
and signed a form acknowledging he had been informed of his rights
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before answering questions from PRPD Agent Diana Marrero in the
early hours of August 2. At the suppression hearing, Agent Marrero
testified that she both read the form to Casey in Spanish and
witnessed him read and voluntarily sign the form, both writing
"sí," "yes" in Spanish, and verbally indicating his willingness to
speak with her.
Over the next several hours, Casey led officers to the
homes of other individuals in the drug trafficking world,
purportedly cooperating with their search for Lizardi. After this
excursion turned up no clear leads, Casey was taken to another
PRPD station at Canóvanas, where the FBI assumed jurisdiction over
him at around 6:00 a.m. While Agent Marrero did not interview
Casey at Canóvanas, she testified at trial that while he was there,
Casey asked to see his grandfather and told Agent Marrero he was
no longer interested in speaking with law enforcement. Casey's
grandfather arrived at that point and gave consent to the search
of Casey's bedroom. Casey was, in the meantime, transferred to
the Luquillo precinct, and then to FBI premises in Ceiba, shortly
after noon on August 2.
At Ceiba, Agent Luis Moulier read Casey his Miranda
rights and Casey exercised his right to remain silent. Agent
Moulier refrained from further questioning.
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Close to 2:00 p.m. that afternoon at Ceiba, Agent Marrero
approached Casey once more, this time confronting him with the
evidence found in his bedroom. She did not repeat his Miranda
rights before initiating this conversation. Casey responded with
statements whose admission he now challenges: "maybe he is alive,
maybe he is dead." When pushed for details, Casey refused to
elaborate, stating only that "there [was] already enough
evidence," and he would "go down" with that evidence. Agent
Marrero recalls then appealing to Casey's emotions as a "family
man," asking him to share any details he could about Lizardi's
location in case Lizardi was still alive and could be rescued. To
this, Casey responded, "I don't know what you are talking about."
At some point in the course of this exchange, Casey asserted his
right to an attorney.
Casey's suppression motion concerns one additional
interaction that day. Shortly after 4:00 p.m., agents permitted
Casey's wife Peña and their infant child into an interview room
where Casey was handcuffed to visit with him in the presence of
Agent André Vachier-Serrano. In his exchange with Peña as
overheard by Agent Vachier-Serrano, Casey made statements
including "[k]illing a cop is a federal case," and "[T]hey seized
a lot of evidence at the house but they don't have the body,
anyway, he was an undercover cop and he knew he was on his way to
do a drug deal with me and could come out dead or alive," which
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Casey now contends the district court erred in declining to
suppress.
In this same conversation, Casey also advised Peña to
obtain employment certificates from his social worker and change
the dates on them to obtain a loan. Their exchange also included
reference to some prior offense "when they got us with drugs and
we came out." Casey asserts this entire interaction comprised an
unconstitutional interrogation, and none of its content should
have been admitted.
The district court granted in part and denied in part
Casey's motion to suppress the statements made to Agent Marrero at
Ceiba and those overheard by Agent Vachier-Serrano. Below, Casey
contended to no avail that all his statements to Agent Marrero
should have been suppressed because he was assaulted upon arrest,
leading him to waive his Miranda rights involuntarily. The
district court found no evidence to substantiate the purported
assault, and ruled that even had Casey been assaulted, the waiver
he gave at PRPD headquarters was voluntary. Finding that Casey
had, however, asserted his right to counsel during his interview
with Agent Marrero at Ceiba just before Agent Marrero appealed to
Casey's sensibilities as a father, the district court suppressed
Casey's statements made thereafter. Finally, the district court
concluded that Casey's conversation with Peña was not a custodial
-35-
interrogation or equivalent to FBI questioning, and declined to
suppress any of what Agent Vachier-Serrano overheard.
D. Application
On appeal, Casey again argues all his statements to Agent
Marrero should have been suppressed. He asserts that the
invocation of his right to remain silent at Canóvanas and again at
Ceiba with Agent Moulier, prior to the Ceiba interview with Agent
Marrero, should have rendered all his statements to Agent Marrero
at Ceiba inadmissible.
While Miranda does not categorically forbid the
resumption of questioning once a person in custody has asserted
his or her rights, under Mosley, whether statements obtained after
the detained person has decided to remain silent are admissible
depends on whether, under a totality of the circumstances, the
person's "right to cut off questioning was scrupulously honored."
423 U.S. at 104 (internal quotation marks omitted). On appeal,
Casey contends that questioning him after both instances in which
he asserted his Miranda rights not to speak was impermissible under
Mosley.
Casey made no such argument below. He rather proceeded
on the theory that the alleged assault by PRPD officers rendered
any waiver of his Miranda rights involuntary. He cannot now raise
-36-
a new basis for suppression, and accordingly we deem this argument
waived. United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998).5
Casey next claims error in the factual determination of
the point in time during the Ceiba interview with Agent Marrero
Casey at which invoked his right to an attorney. Because it was
impossible to tell, he argues, no part of the conversation should
have come into evidence. There was no clear error in placing
Casey's invocation of his right to an attorney after his statement
that Lizardi was "maybe alive" or "maybe dead" but before Agent
Marrero's appeal to his values as a father, and admitting only
part of the conversation accordingly. Agent Marrero testified as
much, and her notes corroborated this finding.
Finally, the district court was correct to conclude that
Casey's conversation with his wife was not the result of an
5 Even if his assertions on appeal about his earlier invocations
of the right to remain silent are accurate and not waived,
statements made after a defendant has invoked his right to remain
silent may nevertheless be admissible. Factors to determine
whether such statements should be admitted include the time elapsed
between interrogations, the provision of fresh Miranda warnings,
the scope of the follow-up interview, and the zeal of the officers
in pursuing questioning. Mosley, 423 U.S. at 104-06; United
States v. Hsu, 852, F.2d 407, 410 (9th Cir. 1998). It is not in
dispute that several hours passed between interviews, and that
Casey was moved to different locations. He moreover offers no
indication that the officers approached him with any particularly
coercive tactics.
-37-
interrogation. "A volunteered statement is not the product of
interrogation and not subject to suppression, even if warnings
have been provided." United States v. Jackson, 544 F.3d 351, 357
(1st Cir. 2008). Casey offers no evidence that the FBI brought
Peña in for interrogation purposes. Rather, the record reflects
that she had been following Casey to the various locations he was
taken and wanted to meet with him of her own volition. See Arizona
v. Mauro, 481 U.S. 520, 530 (1987) (a defendant's voluntary
statements to his spouse while in custody overheard by law
enforcement need not be suppressed). Casey also does not dispute
that he was fully aware Agent Vachier-Serrano was present and
within earshot. We therefore affirm the district court's order
granting in part and denying in part Casey's motion to suppress
statements he made while in custody.
VI. Challenge to Admission of All Statements Due to Lack of
Prompt Presentment
Casey argues for the first time on appeal that all of
his statements should have been suppressed for failure to promptly
bring him before a magistrate judge. He admits, however, that he
declined to raise this argument below. Motions to suppress must
be raised prior to trial, and failure to do so in a timely manner
constitutes waiver. Fed. R. Crim. P. 12(b)(3)(C); United States
v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991) ("Arguments not
seasonably addressed to the district court may not be raised for
-38-
the first time in an appellate venue."). Casey offers no authority
to suggest otherwise. We therefore deem this argument waived.
VII. Challenge To Alleged Trial Errors Infringing Casey's Right
to Confrontation and to Present a Defense
Next, Casey urges that the district court committed a
series of errors throughout his trial, including: (1) admitting
irrelevant and unduly prejudicial evidence under Federal Rule of
Evidence 404(b), specifically statements he made to Peña while in
custody and photographs of Lizardi's body; (2) limiting Casey's
cross-examination of agents about investigation efforts prior to
August 1, 2005; and (3) rejecting under Daubert the preliminary
report from an internal PRPD investigation and its recommendation
of sanctions against several involved officers.
A. Standard of Review
Preserved evidentiary objections are reviewed under an
abuse of discretion standard. This court must nevertheless affirm
even where it finds error, as long as it deems the error harmless.
United States v. Rosado-Pérez, 605 F.3d 48, 54 (1st Cir. 2010).
A series of evidentiary issues, none of which individually warrants
reversal, may have a cumulative effect, rendering the trial unfair.
United States v. Sepúlveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993).
Where, as here, the argument that trial errors had a cumulative
effect upon a defendant's right to confrontation and to present a
-39-
defense is raised for the first time on appeal, review is under a
plain error standard. United States v. Sánchez-Berríos, 424 F.3d
65, 73 (1st Cir. 2005).
B. Irrelevant and Unduly Prejudicial Evidence
1. Federal Rules of Evidence 402, 403, and 404(b)
Rules 401 and 402 provide that all "relevant" evidence,
or that which has a "tendency to make a fact more or less probable
than it would be without the evidence," is admissible. However,
under Rule 403, "[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence." Under Rule 404(b), evidence of
past wrongs is not admissible character evidence to demonstrate a
defendant's propensity to behave in a certain manner.
2. Application
a. Casey's Statements to Peña
Agent Vachier-Serrano first testified as to statements
Casey made to his wife about falsifying an employment certificate,
described above. The court denied a hearsay objection and granted
a relevance objection. It then gave a limiting instruction to the
jury, stating that because the "references to fraudulent conduct
-40-
. . . ha[ve] no bearing on the nature of the charges . . . you may
disregard."
The government then elicited further testimony from
Agent Vachier-Serrano about the current investigation and a
reference Casey made to a prior case. He recalled statements from
Casey such as "in the house they seized a lot of evidence but that
they weren't going to find the body," "[Casey] was going to come
out of this case well," and "reference to another case, a drug
case that he had with [Peña] . . . [a]nd they had come out of the
case okay." Casey's relevance objection was overruled.
Casey argues, for the first time on appeal, error in the
refusal to strike the testimony about falsifying an employment
certificate, and denial of his objection to Agent Vachier-
Serrano's reference to the prior drug offense. Casey contends
this evidence had no probative value, and was merely introduced
for the impermissible purpose of showing propensity.
There was no plain error in finding to the contrary.
The limiting instruction as to Casey's instructions to Peña to
falsify an employment certificate made clear to the jury that the
fraudulent conduct Casey was describing to Peña had no bearing on
this trial. See United States v. Williams, 717 F.3d 35, 42 (1st
Cir. 2013).
-41-
Nor does the court's rationale to permit Agent Vachier-
Serrano's testimony about the prior drug case constitute an abuse
of discretion. While it is conceivable that Casey's statements
about the prior drug offense perhaps reflected his consciousness
of guilt, any such error was likely harmless. Other evidence
alerted the jury to Casey's ties to the criminal underworld; it
was, indeed, no secret that Casey led the police around for several
hours just after his arrest to point out to them other drug
traffickers with possible tips on Lizardi's whereabouts. It is
doubtful that knowledge of an unspecified prior drug offense could
convince a jury to convict Casey of the charges in this case.
b. Photographs of Lizardi's Body
The government introduced nearly twenty photos of
Lizardi's decomposing body. Five were admitted, over objection,
through a PRPD sergeant's testimony about following the body's
stench to locate it; fourteen were autopsy photographs to show
bullet trajectories, to which Casey did not object; and two, to
which Casey did object, were of the body at different angles,
showing what it looked like after it was recovered. Copies of
only the last two were provided for this court's review on appeal.
Casey contends the objected-to photos were irrelevant and
inappropriately submitted to spur an emotional reaction from the
jury.
-42-
It is more than plausible that the first five photos
corroborated various pieces of testimony: the body had been
dragged down the hill to its discovered location; Casey's statement
to Peña that the body would be difficult to find; and the time it
took to locate the body. The jury received instruction prior to
the photos' admission not to be swayed by emotion in viewing this
evidence. The last two photos might likewise have corroborated
testimony that the body had been left outdoors for a few days.
See United States v. Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir. 1996)
(no abuse of discretion in admitting photographic evidence of
victim's wounds in a carjacking case, as such evidence spoke to
elements of the offense, including force, violence, and/or
intimidation).
"A decision by the district court on a Rule 403
determination must stand absent a demonstration of extraordinarily
compelling circumstances." United States v. Lombard, 72 F.3d 170,
190 (1st Cir. 1995) (internal quotation marks omitted). Casey
makes no such demonstration with regard to these photos.
Especially among the array of other photographs and forensic
evidence put before the jury, we do not find admission of two
additional photos of the body as agents discovered it to rise to
an abuse of discretion.
-43-
C. Orders Limiting Cross-Examination of PRPD and FBI Agents
According to Casey, the district court's rulings
limiting cross-examination of Agents Agosto and Moulier, and
Commander Morales, improperly prevented him from eliciting
testimony essential to the theory of his case -- that another
person, Hernández, was actually Lizardi's killer, and that the
investigation had unduly zoomed in on Casey while ignoring leads
pertaining to Hernández. Casey had hoped to demonstrate that
internal administrative PRPD investigations had found officers
negligent in planning the undercover drug buy which had resulted
in Lizardi's death.
The Confrontation Clause of the Sixth Amendment
guarantees criminal defendants the right to cross-examine
witnesses who testify against them. United States v. Vega Molina,
407 F.3d 511, 522 (1st Cir. 2005). This right is not without
limits, however; the district court wields considerable discretion
to impose "reasonable limits" on cross-examination. United States
v. Raymond, 697 F.3d 32, 39-40 (1st Cir. 2012). We review de novo
whether a defendant was afforded a reasonable opportunity to
impeach a witness, and for abuse of discretion limitations the
trial court imposed on that opportunity. Id.
-44-
1. Agent José Agosto
Agent Agosto was Lizardi's supervisor. Casey first
argues he was prevented from impeaching Agent Agosto on the basis
of a PRPD internal disciplinary investigation involving Agent
Agosto. It is clear that the district court did not abuse its
discretion in limiting questioning on this subject, however.
After a sidebar dispute about whether defense counsel could ask
about the investigation's preliminary findings -- that Agent
Agosto had acted negligently –- as opposed to its ultimate
conclusion of no negligence, the court permitted defense counsel
to question Agent Agosto about the former as long as counsel made
clear that it had been a preliminary decision. As cross-
examination was not materially limited here, we conclude there was
no error. Even had questioning been limited, preliminary
investigatory results contradicted by a final determination have
limited probative value, and pose the risk of engendering
significant confusion for jurors. Fed R. Evid. 403.
Casey also argues abuse of discretion in keeping him
from impeaching Agosto based on purportedly conflicting statements
about whether Lizardi, Casey and Hernández met a few days before
the events of August 1, 2005. On the stand, Agent Agosto testified
Hernández and Lizardi did not meet on July 28, 2005, days before
the events of August 1. Defense counsel moved unsuccessfully to
-45-
introduce, as a prior inconsistent statement, a report prepared in
2005 by Agent Agosto documenting that such a meeting did occur, on
information Lizardi had shared with Agosto at that time. While
the district court excluded the report, it did allow defense
counsel to question Agent Agosto about the July 28 meeting. Agent
Agosto's answers revealed that Lizardi, with Casey at the Holiday
Inn, spoke to Hernández by phone on July 28 to plan the August 1
drug buy (although Agent Agosto maintained that Hernández was not
present in person).
Any error by the court here was certainly harmless.
Casey was able to use Lizardi's telephone records to impeach Agent
Agosto's testimony to show that Lizardi did speak to Hernández on
July 28.
2. Commander Morales
The district court similarly did not err in limiting
Morales's testimony to events on August 1, 2005, and thereafter as
direct examination covered only the events on and after August 1.
The court informed Casey of his right to call Morales as a defense
witness to elicit testimony about the July 28 meeting that
purportedly took place prior to August 1. In addition, Morales
testified that he had never met Lizardi, and admitted that his
information was based on reports from other officers, introducing
several levels of hearsay.
-46-
3. Agent Moulier
Casey further contends the district court abused its
discretion in limiting questioning about Agent Moulier's review of
investigative reports describing Lizardi's contacts with
Hernández. Agent Moulier testified extensively about efforts to
investigate Hernández and evidence gathered against him; it was
not an abuse of discretion to find questions about Hernández being
the drug buy contact duplicative.
Casey's additional arguments that these limitations
precluded him from contending that authorities "dropped the ball
when they failed to follow up on statements and evidence in their
hands implicating Hernández" is also without merit. While the
court did exclude statements deemed improper opinion testimony
from a non-expert witness, it did permit Casey's counsel to elicit
a critical point on cross-examination -- that hair found on the
discovered black backpack did not belong to Casey or Lizardi (with
the caveat that the results could have been affected over time),
but was not tested against Hernández.
D. Police Practices Expert Testimony
According to Casey, the district court further abused
its discretion in precluding him from presenting a police practices
expert, Dr. William Gaut. Casey's intent was to have Dr. Gaut
opine on whether the undercover operation was planned up to
-47-
standards. While Casey stresses on appeal the relevance of Dr.
Gaut's testimony, Dr. Gaut testified that he never saw any PRPD
standards or policies for undercover work; and that he was not
even aware whether the FBI or PRPD were part of the Commission for
Accreditation of Law Enforcement Agents. The district court
furthermore reasoned that such evidence could confuse the jury,
tasked with deciding Casey's culpability, not whether PRPD
committed negligence. It was hardly an abuse of discretion for
the district court to exclude expert testimony from someone with
little apparent knowledge of the standards with which FBI and PRPD
investigations must comply. See Ruiz-Troche v. Pepsi Cola of P.R.
Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998) (expert testimony
must be reliable, as well as relevant in the sense that "the
expert's proposed opinion, if admitted, likely would assist the
trier of fact to understand or determine a fact in issue").
E. PRPD Internal Investigator Rodríguez-Torres Testimony and
Report
Nor was there an abuse of discretion in refusing to allow
testimony from a PRPD internal affairs investigator, Agent Carlos
Rodríguez-Torres, and his preliminary report finding negligence in
the planning of Lizardi's undercover operation, to impeach Agent
Agosto's testimony. Significant confusion arose before the
district court over whether sanctions were recommended in the
report (they were not -- the recommended approach was ultimately
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reduced to orientation training), and whether it represented a
final administrative determination.
Moreover, it became clear that Agent Agosto had never
seen this preliminary report, and thus could not be impeached with
its contents. Finally, the government was unable to demonstrate
that the officers whose statements appeared in the report had
personal knowledge of the events they were describing -- or, for
that matter, that Agent Rodríguez-Torres had sufficient personal
knowledge. See Fed. R. Evid. 602. The district court thus did
not abuse its discretion in excluding testimony concerning the
Rodríguez-Torres report.
F. Cumulative Effect
Casey argues the cumulative impact of this purported
litany of errors precluded him from receiving a fair trial. Even
if some, or all, of the above decisions were mistakes, they appear
to concern evidence tangential to the government's case against
Casey. Indeed, even had Casey been able to implicate Hernández
as the more likely perpetrator with some of the above evidence, or
to undermine the PRPD's credibility, he would not have been able
to eviscerate the positive evidence against him.
This court is to weigh trial errors "against the
background of the case as a whole," paying attention to factors
including "the nature and number of errors committed; their
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interrelationship, if any, and combined effect; how the district
court dealt with the errors as they arose" and "the strength of
the government's case." Sepúlveda, 15 F.3d at 1196. Given our
determinations that the district court did not abuse its discretion
in making any of these rulings -- let alone commit harmful
error -- we find no cumulative impact on the fairness of the trial
Casey received.
VIII. Confrontation Clause Challenge to Expert Witness
Testimony
For the first time on appeal, Casey argues his Sixth
Amendment right to confrontation was violated when a purported
surrogate witness, Carna Meyer, testified to introduce three DNA
evidence reports. Specifically, Casey argues that under
Bullcoming v. New Mexico, 131 S. Ct. 2705, 2713 (2011), he was
unconstitutionally deprived of any chance to face the biologist
whose work underpinned the conclusions drawn by the reports about
which Meyer testified.
A. Standard of Review
Objections forfeited below are reversible for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 732 (1993) ("plain errors" are "defects affecting substantial
rights"). By contrast, where a defendant has affirmatively waived
his or her objection, or, in other words, conveyed a "considered
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decision not to avail [him or her]self of a procedural right," we
need not even search. United States v. Medina, 427 F.3d 88, 91
(1st Cir. 2005) ("[O]ur even contemplating a claim of error [in
such a case] would imply an obligation on trial judges to second-
guess counsel in a way that would disturb that entitlement. This
will not do."). Here, via his counsel, Casey affirmatively
announced he had no objection to admission of Meyer's testimony
and the three reports, and cannot now claim a violation of
constitutional rights merely to reverse course on a trial strategy
that proved unsuccessful.
B. Background
Before trial, expert Brendan Shea had prepared a report
based on analysis of the gathered physical evidence, which showed
that DNA from the twenty-dollar bill matched Lizardi; DNA from the
floors and swabs of the abandoned structure matched Lizardi; and
Lizardi was "potentially the major contributor" of DNA on the flip-
flops found in Casey's bedroom. The report was not signed or
certified by anyone but Shea.
The government originally designated Tina Delgado as the
witness who would introduce the report. Casey moved under
Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309 (2009), and Bullcoming, 131 S.
Ct. at 2713, to exclude her testimony on the grounds that Delgado
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did not bear a sufficient connection to the scientific testing
involved in the report's preparation. The government committed
to examining whether Delgado's testimony would comply with
evidentiary rules and to supplying an appropriate witness, and the
motion was denied without prejudice as concerning an issue not yet
ripe.
On the eve of trial, the government designated two
additional DNA reports authored by Meyer, as well as Shea's report.
It then called Meyer to introduce all three. Regarding Shea's
report, Meyer testified that she had "reviewed all of the data,
the notes, and the underlying paperwork" and "agreed with all of
its interpretations." Critical here is that when the government
moved to admit the three reports into evidence, the district court
asked Casey if there were any objections -- to which his counsel
squarely replied, "[n]o, Your Honor." Nor did Casey lodge a single
objection to Meyer's endorsement of Shea's report, or her
subsequent testimony about all the reports' specific results. And
during a sidebar the next day on a separate issue, Casey's counsel
affirmed this stance, stating the defense "ha[s] not disputed the
DNA."
C. Application
Given Casey's express waiver -- offered after the
government made clear its intent to admit all three reports with
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Meyer's testimony, and tainted by no subsequent indications of
misunderstanding or regret prior to this appeal -- we have little
further to do in the way of analysis, and must deny his objection
without reaching its merits. United States v. Soto, 799 F.3d 68,
96 (1st Cir. 2015) (declining to reach the merits of a
confrontation objection raised on appeal, where the circuit
interpreted the defense's silence below to indicate the defense
saw nothing objectionable).6
IX. Denial of Recusal Motion
6 It may nevertheless be worth briefly examining how this move
might have been an intended tactic of Casey's trial strategy. At
closing, Casey's counsel neatly summed up their theory of the case:
that the PRPD and FBI investigation was so affected by "tunnel
vision" that it leapt to pin Lizardi's death on Casey without
adequately investigating other potential suspects, chiefly
Alexander Hernández. It was in service of this narrative that,
throughout the trial, Casey's counsel highlighted how the FBI could
have collected more DNA samples and conducted more DNA tests that
could have implicated Hernández. One such instance, she argued,
was when the blood on Casey's sandal was revealed to contain "a
mixture of DNA," indicating "more then [sic] one contributor," but
was not subjected to further analysis. Such a strategy, we think,
hinged on the accuracy and admission of the FBI's DNA analyses.
There otherwise would have been little reason for the jury to
believe that more testing would have led the FBI to Hernández.
Although this is mere speculation on our part, Casey, it appears,
had plausible reason to welcome admission of the government's DNA
reports.
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Casey's final challenge concerns his unsuccessful motion
for the district court's recusal after it initiated a disciplinary
proceeding against the defense, prior to the start of his criminal
trial. The disciplinary proceeding was based on a complaint the
government lodged asserting that Casey's team had interviewed
Hernández without permission from his counsel, and asked him to
recant in exchange for help in a related state court case.
While investigation of the defense's purported
misconduct was referred to another judge, Casey's particular
objection and reason for requesting recusal was that, in the course
of the proceeding, the district judge allegedly met with the
prosecution ex parte for assistance reviewing subpoenaed
evidentiary documents. Casey also contends that the mere fact
that the district judge undertook such an ethics investigation so
close to the eve of trial created an impermissible appearance of
impropriety.
A. Rules of Recusal
According to 28 U.S.C. § 455(a), any judge or justice
shall disqualify him or herself in any proceeding where his or her
impartiality might reasonably be questioned. Canon 3(A)(4) of the
Code of Conduct for United States Judges states that judges should
not initiate or consider ex parte communications on pending
matters. It does provide the exception, however, that ex parte
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communication is permissible for administrative purposes, only if
it is limited to non-substantive matters and the judge reasonably
believes no party will gain an advantage as a result.
B. Standard of Review
A district court's decision not to recuse itself is
reviewed for abuse of discretion. United States v. Pulido, 566
F.3d 52, 62 (1st Cir. 2009). This court must sustain the district
court's ruling unless it can find the decision was not reasonable
and is unsupported by the record. Id.
C. Background
The district court maintained that communications with
the government about the subpoenaed documents were limited to
determining whether the documents were irrelevant and sent to
chambers in error. Casey does not contest that the judge's
secretary asked the prosecutor to come review the documents, or
that the government's interaction with the judge was minimal. The
record does not suggest that the prosecutor and judge at any point
discussed the merits of Casey's case, reviewed the substance of
the documents together, or had any other substantive exchange.
D. Application
Casey has not brought to light facts on which we might
find the district court abused its discretion in declining his
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recusal motion. It was within the pale of the district judge's
duties to act on the ethical misconduct allegations; and it even
took the step of referring the misconduct proceeding to another
judge, altogether severing its fate from that of Casey's criminal
proceedings. Casey also points to no evidence that the
government's ex parte communications with the district judge
involved either the merits of his criminal case or the ethical
misconduct allegations. Cf. Haller v. Robbins, 409 F.2d 857, 859
(1st Cir. 1969) (finding a due process violation in a habeas case
where the subject of an ex parte communication by the government
to the sentencing judge was a hearsay statement about the
petitioner's conduct). Without more, we must affirm the district
court's ruling.
X. Conclusion
Casey appeals a host of district court decisions made
before and during his jury trial. Upon careful consideration, and
for all the above reasons, we affirm.
AFFIRMED
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