NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 19, 2011
Decided December 20, 2011
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐2291
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Terre Haute Division.
v.
No. 2:10CR00010‐001
SERGIO MELO‐SANTIAGO,
Defendant‐Appellant. William T. Lawrence, Jr.,
Judge.
O R D E R
While federal inmate Sergio Melo‐Santiago, a Mexican citizen, was incarcerated in
Terre Haute, Indiana, a prison guard discovered him in possession of a seven‐inch wire that
was sharpened at both ends and concealed inside a pen. He was convicted after a jury trial
of possessing a prohibited object as an inmate, see
18 U.S.C. § 1791(a)(2), and the district
court sentenced him to 36 months’ imprisonment. Melo‐Santiago filed a notice of appeal,
but his appointed lawyer has concluded that the case is frivolous and seeks to withdraw
under Anders v. California,
386 U.S. 738, 744 (1967). Melo‐Santiago has not responded to his
attorney’s submission. See CIR. R. 51(b). We confine our review to the potential issues
identified in counsel’s facially adequate brief. See United States v. Schuh,
289 F.3d 968, 973–74
(7th Cir. 2002).
Page 2
The indictment alleges that the object found at Terre Haute in November 2009 “was
a weapon or was designed or intended to be used as a weapon.” Prior to trial the
government notified Melo‐Santiago of its intention to present evidence that he had used a
similar metal object to stab an inmate at another facility in 2007. Melo‐Santiago moved in
limine to exclude that testimony under Federal Rule of Evidence 404(b). He explained that
his defense at trial likely would be that he used the wire discovered at Terre Haute as a
cobbler’s awl to repair inmates’ shoes. The 2007 events, he conceded, would be relevant to
the issue of intent, but that incident, he argued, was too remote in time and also unduly
prejudicial. The district court concluded that the proposed Rule 404(b) evidence was
relevant and admissible to establish Melo‐Santiago’s intent to use the wire as a weapon.
Three prison guards testified at Melo‐Santiago’s trial. One Terre Haute guard
explained that he discovered the sharpened wire inside a pen after Melo‐Santiago had set
off a metal detector. Another guard testified that this type of object is one of “the most used
weapons” at that facility, and that inmates often craft them from wire removed from fences.
The third guard, from the medium‐security prison in Coleman, Florida, where
Melo‐Santiago previously had been incarcerated, testified that a video camera had captured
footage of Melo‐Santiago stabbing another inmate with an object that he afterward threw in
the trash. The recovered object, the guard said, was a seven‐inch “shank” nearly identical to
the object confiscated in Terre Haute. No charges were filed in Florida because the victim
had refused to cooperate. Before this testimony was elicited, the district court had cautioned
jurors that they should consider it only for the limited purpose of assessing Melo‐Santiago’s
motive, intent, plan, or absence of mistake or accident. Another cautionary instruction was
included in the jury charge.
Two inmates from Terre Haute testified for the defense, and each recounted that
Melo‐Santiago had fixed a pair of shoes for him in prison. Melo‐Santiago also testified. He
admitted possessing the object at Terre Haute and explained that he had fashioned it by
sharpening both ends of a length of fence wire. He repaired inmates’ shoes “all the time,” he
continued, by using the wire to punch holes when stitching shoe leather. Melo‐Santiago,
whose testimony through an interpreter was frequently interrupted by the prosecutor,
acknowledged knowing he was prohibited from carrying sharp objects but insisted that he
used the wire only for shoe repair. He conceded on cross‐examination, however, that he
knew the object would be confiscated if found because it was a weapon. When questioned
by his lawyer about the metal object recovered in 2007, Melo‐Santiago admitted having it
but said that it was found, not in the trash, but in his locker where he kept it openly.
The jury, while deliberating, requested a transcript of Melo‐Santiago’s testimony. His
lawyer asked that the court reporter prepare a transcript, but the district court instructed the
jurors that a transcript was unavailable and that they should work from memory.
Page 3
In his Anders submission, counsel first considers challenging the sufficiency of the
evidence supporting Melo‐Santiago’s conviction. We would evaluate, viewing the evidence
in the light most favorable to the government, whether a rational jury could have found
Melo‐Santiago guilty of the offense beyond a reasonable doubt. See United States v. Anderson,
580 F.3d 639, 646 (7th Cir. 2009). Section 1791(a)(2) makes it a crime for a prison inmate to
make, possess, or obtain a “prohibited object,” or attempt to do so. Subsection (d) of the
statute defines “prohibited object” to include weapons and objects “designed or intended to
be used as a weapon.”
18 U.S.C. § 1791(a)(2), (d)(1)(B).1 The jury was instructed that to
convict Melo‐Santiago under § 1791(a)(2), the government had to prove that, while an
inmate, he knowingly possessed “a prohibited object; that is, a weapon or an object that is
designed or intended to be used as a weapon.” As his lawyer explains, Melo‐Santiago
admitted at trial that he was carrying the prohibited wire but insisted that he possessed it
only for use as a cobbler’s awl. But the government presented testimony that objects like the
one Melo‐Santiago possessed at Terre Haute are commonly used as weapons in prison and
that, in fact, he had used a sharpened wire to stab an inmate at another facility. And
Melo‐Santiago himself acknowledged on cross‐examination that he knew prison authorities
deemed sharpened wires to be weapons. The jury was entitled to credit the testimony of the
guards over Melo‐Santiago and infer that he made and intended to use the metal object as a
weapon. Anderson,
580 F.3d at 646; United States v. Kelly,
519 F.3d 355, 362 (7th Cir. 2008);
United States v. Copus,
93 F.3d 269, 273 (7th Cir. 1996); United States v. Holmes,
607 F.3d 332,
335 (3d Cir. 2010). Accordingly, we would conclude that sufficient evidence supports the
jury’s verdict.
Counsel next proposes to argue that the district court erred in admitting the guard’s
testimony that two years earlier Melo‐Santiago had used a nearly identical metal object as a
weapon in Florida. As defense counsel conceded even at trial, that testimony was relevant,
1
Other prohibited objects include guns, drugs, currency, phones, and anything “that
threatens the order, discipline, or security of a prison, or the life, health, or safety of an
individual.”
18 U.S.C. § 1791(d)(1)(A)–(G). The possible punishment turns on the nature of
the prohibited object. This court has not yet decided conclusively whether the type of
prohibited object is a sentencing factor or an element of the offense that the government
must prove beyond a reasonable doubt. But it was the prosecutor who submitted the
instruction identifying the type of object as an element of the offense, and the government
thus is bound by that understanding of the statutory elements. See United States v. Staples,
435 F.3d 860, 866 (8th Cir. 2005); United States v. Williams,
376 F.3d 1048, 1051–52 (10th Cir.
2004); United States v. Zanghi,
189 F.3d 71, 79 (1st Cir. 1999); United States v. Jokel,
969 F.2d
132, 136 (5th Cir. 1992); 18B WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE
§ 4478.6 (2d ed. 2002).
Page 4
not as propensity evidence, but to rebut Melo‐Santiago’s assertion that he intended to use
the wire only as an awl. See United States v. Harris,
587 F.3d 861, 865 (7th Cir. 2009); United
States v. Burt,
495 F.3d 733, 742 (7th Cir. 2007); United States v. Shearer,
379 F.3d 453, 456 (7th
Cir. 2004). The prior incident was not too remote in time given its similarity to the charged
offense, United States v. Moore,
641 F.3d 812, 824 (7th Cir. 2011); Harris,
587 F.3d at 865, and
the court minimized any prejudicial effect of the evidence by twice instructing the jury to
consider the guard’s testimony only for the limited purpose of evaluating Melo‐Santiago’s
motive, intent, knowledge, or absence of mistake or accident, see United States v. Zahursky,
580 F.3d 515, 545 (7th Cir. 2009); Moore,
641 F.3d at 824. Thus, we agree with counsel that
challenging the district judge’s exercise of discretion in admitting the testimony would be
frivolous.
Counsel also questions whether Melo‐Santiago could argue that the district court
abused its discretion by declining the jury’s request for a transcript of his testimony. That
testimony, though muddied by the prosecutor’s apparent difficulty adapting to the use of
an interpreter, plainly established Melo‐Santiago’s straightforward theory of defense. And
counsel has not disputed the court’s explanation at trial that a copy of the testimony was not
readily available. See United States v. White,
582 F.3d 787, 805 (7th Cir. 2009); United States v.
Rodriguez,
457 F.3d 109, 119–20 (1st Cir. 2006). We agree with counsel that an appellate claim
would be frivolous.
Finally, counsel properly concludes that any challenge to the length of
Melo‐Santiago’s prison term would be frivolous. Melo‐Santiago was sentenced within his
guidelines imprisonment range, and counsel has not identified any basis to challenge the
presumption of reasonableness that applies. See Rita v. United States,
551 U.S. 338, 341 (2007);
United States v. Aslan,
644 F.3d 526, 531–32 (7th Cir. 2011).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.
