United States v. Melendez-Santiago ( 2011 )

United States Court of Appeals
For the First Circuit
No. 08-2394
UNITED STATES OF AMERICA,
Appellee,
v.
ELKIN MELÉNDEZ-SANTIAGO, a/k/a CARLOS, a/k/a CALICHE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Jorge L. Armenteros-Chervoni, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, were on brief, for appellee.
June 30, 2011
LYNCH, Chief Judge. After a twenty-eight-day trial in
2007 a jury found Elkin Meléndez-Santiago, one of twelve indicted
co-conspirators, guilty of conspiracy to import five or more
kilograms of cocaine and one or more kilograms of heroin, as well
as actual importation of five or more kilograms of cocaine, as part
of a massive cocaine and heroin importation organization. Only one
other defendant went to trial and he was also convicted. The
remainder pled guilty.
In the conspiracy, Meléndez provided cash to co-
conspirators to cover expenses for some drug smuggling operations
and purchased cocaine and heroin imported into Puerto Rico for
further distribution. Millions of dollars worth of drugs were
imported. During one importation attempt in 2004, federal officers
who had been tipped off to the drugs' arrival seized the drugs
after a shootout with some of Meléndez's co-conspirators. The
district court found it was known or foreseeable that firearms were
being carried in furtherance of the conspiracy, justifying a
sentence enhancement.
Meléndez was a cocaine addict who used cocaine daily,
United States v. Melendez Santiago, 544 F. Supp. 2d 76, 83 (D.P.R.
2007) (Melendez II), but he had no prior criminal record. He was
sentenced to 360 months' imprisonment, which was less than the life
sentence advised by the U.S. Sentencing Guidelines.
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His appeal argues two points. First, he argues the
district court committed reversible error in not suppressing
evidence of conversations recorded in two Title III wiretaps
because the affidavits in support of the wiretaps did not
sufficiently explain why traditional investigative procedures were
inadequate, necessitating wiretaps, see 18 U.S.C. § 2518(1)(c),
(3)(c), and because the affidavits contained misleading
information. He argues that the district court should have held a
Franks hearing to permit him to establish that the affidavits
included misleading information and that without such information,
the affidavits would not have sufficed to establish probable cause
for the wiretaps. See Franks v. Delaware, 438 U.S. 154, 155-56
(1978). Second, Meléndez argues the court erred in denying a
second motion to suppress his own statements and confession to
agents while in custody as involuntary under the Fifth Amendment or
in violation of his Sixth Amendment right to counsel. The district
court issued careful and helpful opinions on both motions. See
Melendez II, 544 F. Supp. 2d 76 (denying motion to suppress
statements); United States v. Melendez-Santiago, 447 F. Supp. 2d
144 (D.P.R. 2006) (Melendez I) (denying motion to suppress wiretap
recordings). We reject Meléndez's arguments and affirm.
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I. The Title III Wiretap
A. Necessity
The initial determination as to compliance with the
stringent standards for issuing a wiretap authorization, 18 U.S.C.
§ 2518(1), is made by the judge to whom the application is made.
See United States v. Nelson-Rodriguez, 319 F.3d 12, 32 (1st Cir.
2003) (explaining standard and procedure for wiretap warrants). At
this later stage, appellate review of that authorization is not de
novo, but deferential. We "decide if the facts set forth in the
application were minimally adequate to support the determination
that was made." Id. (quoting United States v. Ashley, 876 F.2d
1069, 1074 (1st Cir. 1989)) (internal quotation marks omitted).
Here, two wiretap authorizations resulted from
applications dated November 23 and December 9, 2004, both supported
by sworn affidavits by FBI agent Jose Mena. Both applications
targeted certain cell phone numbers and were approved by a district
court judge. These cell phone numbers were used by the conspiracy
leader, Luis Alfredo De La Rosa-Montero, also known as "Luis
Viagra" or "El Compadre," to coordinate the drug conspiracy.
In order to be approved, the applications needed to show
what is commonly referred to as the "necessity" of resort to
wiretaps. United States v. Martinez, 452 F.3d 1, 4 (1st Cir.
2006). To make this showing, wiretap applications must provide "a
full and complete statement as to whether or not other
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investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous." 18 U.S.C. § 2518(1)(c); see also id. § 2518(3)(c)
(judge's duty to evaluate showing of necessity). In United States
v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003), we interpreted
§ 2518(1)(c) "to mean that the statement should demonstrate that
the government has made 'a reasonable, good faith effort to run the
gamut of normal investigative procedures before resorting to means
so intrusive as electronic interception of telephone calls.'" Id.
at 9 (quoting United States v. Hoffman, 832 F.2d 1299, 1306-07 (1st
Cir. 1987)). In such a statement, "[i]t is not necessary . . . to
show that other methods have been entirely unsuccessful." Id.Our reading of the affidavits disproves Meléndez's
contentions that they were insufficient to support issuance of the
wiretap authorizations. Indeed, they were better than minimally
adequate. The November 23 affidavit contained the available
identifying information known about the conspirators, all Dominican
or Puerto Rican nationals. The affidavit also described how three
confidential sources and one confidential informant had at times
aided the investigation, providing information about those who were
working in the conspiracy and about particular prior shipments,
information that had led to successful arrests and drug seizures.
The affidavit described in twenty-five detailed pages the
conversations and interactions the sources and informant had with
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De La Rosa, some of which were recorded by the sources and some of
which were verified when transactions were interrupted and
smugglers arrested by federal officials. The affidavit also
described what information had been gleaned from existing pen
register and trap and trace analysis of De La Rosa's phone numbers.
The November 23 affidavit also described the limited
success of efforts to conduct physical surveillance of the
conspiracy leader De La Rosa. Physical surveillance was especially
difficult in St. Thomas, where De La Rosa lived, because the
streets were narrow and foreigners easily spotted. De La Rosa and
other conspirators stayed in areas frequented by other Dominican
nationals who were part of the same criminal subculture. The
conspirators were wary of surveillance and they, in fact, mounted
vigilant counter-surveillance. The conspirators did not use their
real names and distrusted others not like them. Federal agents
either mounting surveillance or attempting to infiltrate the
organization undercover who were not members of that subculture
would be easily spotted, would not be trusted by other members of
the conspiracy, and would consequently be at great risk.
Importantly, at the time of the wiretap application, one of the
confidential sources had been missing for five months and was
presumed dead; another had been threatened with death and was no
longer trusted by members of the organization.
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The information from sources other than surveillance was
also constrained. The affidavit explained why traditional
investigative techniques that had not been used--a grand jury
investigation, interviews with co-conspirators or their associates,
or execution of search warrants--were, particularly given the
limited information known about the co-conspirators' identities and
roles, likely to tip off the co-conspirators as to the developing
investigation without yielding much helpful information. Pen
registers and trap and trace records were already being used and
would continue to be used, but gleaned only limited information
about the cell phones being used.
The December 9 application sought wiretap authorization
for another, new cell phone number used by De La Rosa. The
supporting affidavit was similar in its level of detail to the
first, related affidavit.
The affidavits' exhaustive explanation of what facts were
known, what details remained unknown, what investigative techniques
had been used and what techniques were likely to be unhelpful in
the specific context of this particular conspiracy clearly
constituted "a full and complete statement as to whether or not
other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be
too dangerous." 18 U.S.C. § 2518(1)(c). The affidavits certainly
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supported the determination to authorize the wiretaps. See Nelson-
Rodriguez, 319 F.3d at 32-33.
B. Alleged Misleading Information
Meléndez argues that the affidavits failed to disclose
that the agent who signed them was himself of Dominican origin, as
was one of the confidential sources, and that they understated the
scope of that source's knowledge about the internal workings of the
criminal conspiracy. These arguments are in service of Meléndez's
hypothesis that someone of Dominican origin could easily have been
slipped into the organization as an undercover agent, and that
alternatively, the confidential source must already have had
sufficient knowledge about the conspiracy's organization, both
facts obviating any need for wiretaps.
Meléndez takes it one step further and argues that
because these facts were so obviously material, the affidavit
misled the district court judges who authorized the wiretaps into
authorizations they would not otherwise have granted. See Franks,
438 U.S. at 171-72 (holding that if "deliberate falsity or reckless
disregard" for the truth in a warrant affidavit are specifically
and reliably alleged, and if there is no longer sufficient material
to support a finding of probable cause when the material in
question "is set to one side," the court must grant the defendant
a hearing to prove the allegations).
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This house of cards is too flimsy to stand. To be of
Dominican origin does not make one a natural undercover agent (or
inconspicuous as part of a criminal sub-culture); nor does it
mitigate the likelihood of an agent or confidential source being
murdered by the conspiracy upon discovery.1 Meléndez's speculation
that the confidential source must already have known and shared
with the investigators the details of the conspiracy's inner
workings before the wiretap application is equally illogical and
unsupported. No inference of falsity or reckless disregard of the
truth can be drawn from the non-disclosure of these irrelevant bits
of information. For that reason no hearing was required. See
Franks, 438 U.S. at 155-56. Nor did the ample probable cause set
forth in the affidavit for tapping the phones depend in any way on
these alleged omissions, also obviating the need for a Franks
hearing. See Nelson-Rodriguez, 319 F.3d at 34.
II. Defendant's Incriminatory Statements to Investigators
After evidentiary hearings on two days, the district
court made findings of fact and concluded that statements Meléndez
had made while in custody were voluntary under the Fifth Amendment
and that Meléndez had intelligently waived any right to counsel
under the Sixth Amendment. Melendez II, 544 F. Supp. 2d at 85-89.
1
Indeed, as the affidavit explained, the confidential
source Meléndez refers to was in custody at the time of the
application because members of the conspiracy already distrusted
him and had threatened his life.
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We review the factual findings for clear error. United
States v. Rojas-Tapia, 446 F.3d 1, 3 (1st Cir. 2006). But as to
determinations on matters of law, such as whether the totality of
the circumstances demonstrates that a defendant's statement was
knowing and voluntary, our review is de novo. Id.As to Fifth Amendment rights, the Supreme Court recently
summarized the familiar Miranda rule in Maryland v. Shatzer, 130 S.
Ct. 1213 (2010):
To counteract the coercive pressure [of a custodial
interrogation], Miranda announced that police
officers must warn a suspect prior to questioning
that he has a right to remain silent, and a right
to the presence of an attorney. After the warnings
are given, if the suspect indicates that he wishes
to remain silent, the interrogation must cease.
Similarly, if the suspect states that he wants an
attorney, the interrogation must cease until an
attorney is present. Critically, however, a
suspect can waive these rights. To establish a
valid waiver, the State must show that the waiver
was knowing, intelligent, and voluntary . . . .
Id. at 1219 (citations omitted). If a suspect invokes the right to
have counsel present during custodial interrogation, further
interrogation may take place without counsel only if "the accused
himself initiates further communication, exchanges, or
conversations" with the authorities. Id. (quoting Edwards v.
Arizona, 451 U.S. 477, 485 (1981)).
As to the Sixth Amendment right to counsel, it attaches
at or shortly after "the initiation of adversary judicial criminal
proceedings--whether by way of formal charge, preliminary hearing,
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indictment, information, or arraignment."2 United States v.
Boskic, 545 F.3d 69, 81 (1st Cir. 2008) (quoting Rothgery v.
Gillespie County, Tex., 554 U.S. 191, 198 (2008)) (internal
quotation marks omitted). These rights may also be waived, and "a
valid waiver of Fifth Amendment rights typically will suffice to
accomplish a waiver of the Sixth Amendment right to counsel in the
context of police questioning of a defendant." Id. at 84 n.17.
The dispute concerns Meléndez's several confessions to
the federal agents of his role in the conspiracy. There is no
assertion that the district court misapprehended or misapplied the
law on waiver of these rights. Rather, Meléndez attacks the
district court's judgments that the government's witnesses were
credible and Meléndez was not in recounting the events following
his arrest.
We briefly summarize the testimony at the suppression
hearings of FBI Agents Juan Berrios Silva and Felix Rivera, and of
Meléndez. Meléndez was arrested at his home just after 5:00 a.m.
on September 13, 2005 by Agent Berrios and others and initially
taken into custody at FBI offices. He testified that he was first
2
In this case, the indictment against the co-conspirators
was filed before Meléndez was arrested. Meléndez argues, and the
government does not dispute, that as a result his Sixth Amendment
right to counsel had already attached when he was first arrested,
so that it covered his interviews with federal agents both before
and after his initial appearance before the magistrate judge. The
analysis that follows assumes without deciding that he is correct
about the timing.
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advised of his rights under Miranda while en route, and was then
given a written form explaining those rights in Spanish upon
arrival at the Federal building. The parties agree that the bottom
portion of the form, which contained an assent to waiver of
Meléndez's rights, was crossed out before he signed the form at
6:45 a.m, because he was not at that time waiving his rights.
Meléndez admits he then went to Pretrial Services where he was
given Miranda warnings a third time.
Agent Berrios and defendant Meléndez testified rather
differently regarding what happened after Meléndez was returned to
the processing room from Pretrial Services, and the district court
credited the agent's testimony. Agent Berrios testified that
Meléndez approached him and another FBI agent and told them he
wanted to cooperate, then spoke with them voluntarily for close to
an hour, confessing to his role in the conspiracy. The next day,
Berrios prepared an FBI Form 302 summarizing Meléndez's debriefing
and the information obtained. Meléndez was kept separately from
the other detainees after he was debriefed.
Meléndez testified, by contrast, that he had specifically
and repeatedly requested his own lawyer from the time he was first
read his Miranda rights, that he had been told that after he
cooperated the agents would call his attorney, and that despite the
agents' constant pressure on him he had consistently refused to
cooperate.
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At about 1:30 p.m. the same day, Meléndez was taken
before a magistrate judge for his initial appearance. The judge
advised him of his right to consult counsel, but Meléndez, as his
own testimony established, did not request an attorney.3 It is
undisputed that Meléndez did not say he had already requested an
attorney but had been denied one, that he was being pressed to
waive his right to counsel, or that he had already been interviewed
in violation of his rights. Berrios testified that the prosecutor
told the judge at sidebar that Meléndez had decided to cooperate.
It is undisputed that Meléndez was returned to the custody of the
FBI after his initial appearance, which Berrios testified happened
only in order to facilitate Meléndez's cooperation with the
investigation.
Berrios testified that, wanting Meléndez to feel
comfortable because he was cooperating, the agents took him to a
hotel after that initial appearance, and not to jail, as would
usually happen. Another agent, Felix Rivera, was present at the
hotel and testified at the suppression hearing consistently with
Agent Berrios that Meléndez was indeed relaxed and comfortable at
3
For reasons that are not clear, no transcript or
recording of the initial appearance has been located or presented
to us. We rely on the trial judge's findings of fact as to what
happened at the initial appearance. In addition, there is no
reason to believe that this highly experienced magistrate judge did
not advise Meléndez of his right to counsel at his appearance after
his arrest. Meléndez in fact testified that he was read his rights
before the magistrate judge and did not ask for a lawyer.
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the hotel, that he made a few fruitless phone calls to co-
conspirators who would not speak because they already knew he had
been arrested, and that he did not request counsel in either
agent's presence. Both agents testified that the next morning,
September 14, Meléndez was taken to a government building where he
was debriefed in more depth by several agents, including Berrios
and Rivera, at which time he cooperated without ever requesting
counsel or expressing reluctance to cooperate, and after which
Rivera prepared another FBI Form 302 summarizing the interview.
After the interview, the agents consulted with the prosecutors, who
determined Meléndez should be taken to the federal prison.
Meléndez testified that he was terrified to be taken to
the hotel because he thought he was being kidnapped, and that he
had refused to make any calls while there. He testified that
during the second interview the next morning he had continued to
adamantly refuse to cooperate, confess, or make calls, and had
continued to ask to see an attorney.
The district court decided to "afford total credibility"
to the agents' testimony rather than to Meléndez's version of
events. Melendez II, 544 F. Supp. 2d at 86. The court found that
each agent's testimony was delivered credibly and was consistent
with the other's "even after being rigorously cross examined" by
defense counsel. Id. at 85. And circumstantial evidence
corroborated the agents' testimony that Meléndez was voluntarily
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cooperating with the agents during the two days following his
arrest, including that the magistrate judge left Meléndez in the
custody of the FBI after his initial appearance, that he was taken
to a hotel instead of to jail following his initial appearance, and
that he did not ask for a lawyer before the magistrate judge even
when advised he had a right to consult one. Id. at 85-86.
Crediting the agents' testimony, the district court found
as fact that during those two days, Meléndez was calm, collected,
and capable of intelligent and voluntary waiver of his rights. Id.at 86 n.1. The court found that he initiated the first interview
with the agents, and that he did not ask for an attorney, did not
say he did not want to cooperate, and did not ask to stop any of
the interviews. Id. at 86.
We have reviewed the transcripts of the suppression
hearing and conclude that there is no clear error in the district
court's findings of fact. "Where a district court's 'factual
findings are based on credibility determinations[,] . . . error is
seldom considered "clear" unless the credibility assessments were
based on testimony which was inherently implausible, internally
inconsistent, or critically impeached.'" United States v. Merlino,
592 F.3d 22, 27 (1st Cir. 2010) (quoting Awon v. United States, 308
F.3d 133, 141 (1st Cir. 2002)) (alteration and omission in
original); see also United States v. Coraine, 198 F.3d 306, 309
(1st Cir. 1999) ("When faced with conflicting testimony and nothing
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more, the district court's decision to believe one witness instead
of another and to draw an appropriate conclusion cannot be
considered clearly erroneous."). Meléndez makes no allegation of
inconsistency or impeachment, and the complaints he raises that the
agents failed to produce a signed waiver, a cooperative agreement,
a recording of the interviews, or a signed statement from Meléndez
do not establish inherent implausibility or other basis for a
finding of clear error.
Nor was there any error in the district court's
conclusion of law on these facts that Meléndez had knowingly and
voluntarily decided to cooperate, without counsel, in both of his
interviews, waiving his Fifth and Sixth Amendment rights. He
initiated his first interview on September 13 himself after being
advised twice of his Miranda rights. Even later, after being
advised of both his Fifth and Sixth Amendment rights by the
magistrate judge at his initial appearance, he continued to
cooperate without reluctance and without requesting counsel. The
court did not err in its conclusion that, under all the
circumstances, Meléndez voluntarily and intelligently waived both
his right to remain silent and his right to counsel as of the time
he made his statements.4 See United States v. Thongsophaporn, 503
4
We add that no plausible question was ever raised on this
time frame of the Miranda warnings wearing off before either of the
interviews on September 13th and 14th. See United States v.
Anthony, 474 F.2d 770, 773 (5th Cir. 1973) ("[T]here is no
requirement that an accused be continually reminded of his rights
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F.3d 51, 56 (1st Cir. 2007) (stating standard for waiving Fifth
Amendment rights once invoked when defendant subsequently initiates
conversation with officers); United States v. Leon-Delfis, 203 F.3d
103, 110-11 (1st Cir. 2000) (stating Sixth Amendment waiver
standard and congruence with Fifth Amendment standard).
The judgment of conviction is affirmed.
once he has intelligently waived them."). Nor could there be, even
if there were such a requirement: Meléndez was read his rights
three times the day of his arrest, and the interviews at issue were
over less than two days later.
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