United States v. Colon

United States Court of Appeals
For the First Circuit
No. 13-1156
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN COLON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.
Theodore M. Lothstein, with whom Lothstein Guerriero, PLLC,
was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
February 26, 2014
KAYATTA, Circuit Judge. Juan Colon was convicted, after
a three-day jury trial in the United States District Court for the
District of Rhode Island, of possession of marijuana with intent to
distribute, possession of a firearm by a convicted felon, and
possession of a firearm with an obliterated serial number. A
significant part of the government's case consisted of
incriminating statements he made to the police over the course of
several encounters. In turn, a significant part of Colon's defense
was to argue that the statements should not be believed for a
variety of reasons, including lack of voluntariness. A federal
statute, 18 U.S.C. § 3501(a), provides that in cases such as this,
the trial court, after having satisfied itself that a confession
was given voluntarily, "shall instruct the jury to give such weight
to the confession as the jury feels it deserves under all the
circumstances." Colon now appeals, arguing that the trial court
committed plain error by failing in its jury instructions to hew
closely enough to the statute's text. Finding no reversible error,
we affirm.
I. Facts
The facts giving rise to this appeal are undisputed. On
December 2, 2011, police in Providence, Rhode Island sought and
obtained a "no-knock" search warrant entitling them to search the
first floor apartment of the building at 28 Homer Street in
Providence. The police obtained the warrant based on information
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they had collected during a month-long investigation focusing on
the apartment and one of its inhabitants, Juan Colon, who lived
there with his girlfriend, Rosaris Cabreja, and their two-year-old
daughter. The warrant authorized officers to search both the first
floor apartment and Colon himself for narcotics and firearms.
At approximately 7:30 p.m. on December 5, 2011, and aware
that Colon was in the apartment, police battered down the front
door and entered. According to the trial testimony of Detective
John Black, the first officer to enter the apartment, Colon was
armed. Upon the officers' entry, Colon rose from a seat in the
apartment's living room, ran through a hallway to a bedroom in the
back of the apartment, and threw the firearm he had been holding
behind a nightstand.1 At that point, officers took Colon to the
ground, handcuffed him, presented him with the search warrant,
explained why they were at the residence, and read him his rights.
According to Detective Black, Colon then told Black that
he was a marijuana dealer and that any narcotics and firearms in
the apartment belonged to him, not to Cabreja. He showed Black
thirteen bags of marijuana, individually wrapped, and denied having
other drugs in the apartment. Perhaps skeptical, officers
continued to search the apartment while Colon, who was secured in
a room separate from Cabreja and their daughter, repeatedly yelled
1
Upon later inspection, this firearm turned out to be a
Ruger SR9 model handgun with a scratched-off serial number and a
magazine containing seventeen live rounds.
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apologies to Cabreja in both English and Spanish. Eventually,
officers took Colon to the police station, leaving Cabreja and the
child behind.
After Colon had been removed from the apartment, police
found 3.55 grams of cocaine, stored with zip lock bags, in a baby
wipes container in a kitchen cabinet that also contained a digital
scale with cocaine residue on it. Elsewhere in the apartment,
police found a small pill bottle containing marijuana, a backpack
containing ammunition in various calibers, and two rolls of cash,
totaling $9,900, in the pocket of a pair of blue jeans that also
contained Colon's identification.
According to Black's testimony, after they found the
cocaine, officers told Cabreja that they had found a firearm in the
residence, that they knew that Colon was dealing marijuana and
cocaine out of the residence, and that Colon had given them consent
to search two vehicles registered to Cabreja. Having so informed
her, they additionally sought and obtained her consent to search
the vehicles.2 After Cabreja signed written consent forms for both
vehicles and produced keys for one, police searched both vehicles,
finding in one of them a .25 caliber handgun, $10,000 in cash, and
paperwork bearing Colon's name, and finding in the other a .45
caliber handgun containing eight live rounds.
2
Though Colon argued below that neither he nor Cabreja gave
consent to search the cars, he has declined to appeal the district
court's finding that in fact, both of them did so.
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Following these discoveries, police placed Cabreja under
arrest for possession of firearms and narcotics and took her back
to the station, where Black questioned her in an interview room.
At the close of that questioning, Black went to a different
interview room, where he questioned Colon, who had been waiting for
approximately ninety minutes in a cell block before being
transported to an interview room and handcuffed to a wall.
According to the recording of that questioning,3 Black first read
Colon his Miranda rights, which Colon again waived.4 Black then
proceeded to briefly ask about Colon's daughter and about Colon's
relationship with Cabreja. Upon determining that Colon's daughter
was two years old, that Cabreja was the daughter's mother, and that
Colon and Cabreja had been dating for approximately five years,
Black began his inquiry into the offenses as follows:
[Detective Black:] Alright, listen, here's the deal.
You've got some problems right now. You got some issues.
The gun you had on you tonight it's got a scratched off
serial number. That's not good. It's not good it's got
3
A recording of the interview was played at trial, and the
jury was provided with both the recording and a transcript thereof.
4
In his motion to suppress his self-inculpatory statements,
Colon, a native Spanish speaker, argued that his waivers were
neither knowing nor voluntary, because they came before he had been
given a Spanish-language Miranda warning. In denying the motion,
the district court, noting that Colon was a previously convicted
felon, "put no credit in the argument that he didn't really
understand what was going on because of the language barrier." The
district court concluded that the circumstances surrounding the
confessions did not "create[] anything close to a highly coercive
environment," and that the waivers were both knowing and voluntary.
That determination is not challenged on appeal.
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a laser [sight]. And it's not good that you're in
possession with intent to deliver cocaine and marijuana
while you're in possession of a firearm. That's not
good. Okay? I'm going to ask you--I'm going to talk to
you about a couple of things. And what I need to
determine from you is who to charge. I mean you're
getting charged. You[r] cooperation will go a long way
like I told you earlier on, you know, how much time you
do ultimately and how much a judge finds you to be, you
know, being able to be rehabilitated. Okay? . . . I have
your girlfriend here.
Black then proceeded to interrogate Colon, largely by
explaining the details of what he had observed during the execution
of the warrant and asking Colon to confirm them. During the
interrogation, Colon admitted that the marijuana and the Ruger SR9
firearm found in the house belonged to him. He also admitted,
contrary to what he had suggested at the apartment, that he had
sold cocaine.
Soon after Colon confessed to having sold marijuana and
cocaine, the memory on Black's recorder ran out. Black continued
the interrogation for a short while before noticing, departing the
interview room to clear space on the recorder, and returning. The
transcript reveals that soon after Black returned, Colon admitted
that the firearms in the cars belonged to him.5 At the end of the
interrogation, Black told Colon that he would "talk to [his] boss
and "try to get [Cabreja] home to the baby." After the
5
Black testified at trial that, during the unrecorded
portion, Colon's "tone never varied, never changed." And Colon
does not suggest that officers engaged in untoward behavior during
the portion of the interview that the recording failed to capture.
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interrogation, the police released Cabreja without charging her and
permitted Colon to enter the interview room in which she had been
detained in order to say goodbye. The police detained him
overnight, and while some prisoners were transported to court for
arraignments early the next morning, Colon remained in his cell
block at the station.
The following morning, Special Agent Kevin McNamara
interrogated Colon in an interview room at the station. McNamara
read Colon his Miranda rights, but in what he referred to at trial
as an "oversight," failed to have Colon sign a waiver form.
McNamara's digital recording of the interrogation was played for
the jury and transcribed. During the interrogation, Colon admitted
to having purchased two of the firearms and having received the
third from an individual who had found it. Colon further admitted
to using and selling marijuana.
On April 4, 2012, Colon was indicted on five counts
related to the above incidents. Count 1 charged him with
possession of cocaine with intent to distribute; Count 2 charged
him with possession of marijuana with intent to distribute; Count
3 charged him with possession of a firearm by a convicted felon;
Count 4 charged him with possession of a firearm in connection with
the drug trafficking crimes alleged in Counts 1 and 2; and Count 5
charged him with possession of a firearm with an obliterated serial
number.
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Prior to trial, Colon moved to suppress the statements he
made to Black and McNamara, arguing that any waiver of his Miranda
right to remain silent was a product of threats and coercion.
Though that motion was denied, Colon's defense strategy focused
largely on convincing the jury that the statements he had made to
the two officers could not be believed. Prior to trial, Colon
proposed the following jury instruction:
You have heard evidence that Juan Colon made certain
statements in which the government claims he admitted
certain facts. Testimony regarding unrecorded
statements, particularly in circumstances where recording
equipment is available, must be viewed with caution. It
is for you to decide (1) whether Mr. Colon made the
statements he is alleged to have made, and (2) if so, how
much weight to give them. In making those decisions, you
should consider all of the evidence about the statement,
including the circumstances under which the statement may
have been made and any facts or circumstances tending to
corroborate or contradict the version of events described
in the alleged statement.
During the opening statement, Colon's lawyer relied on
the theme that Colon's inculpatory statements need be viewed in
context, telling the jury that when Colon was interviewed at the
station, "he didn't know where his daughter was, and the detective
who spoke to him told him repeatedly throughout his
statement . . . that his girlfriend was going to be charged
criminally if he didn't cooperate and talk to the police." She
advised the jury as follows: "[A]s you listen to [the recorded
interviews] and other similar pieces of evidence in this case, I
want you to consider the circumstances under which that evidence is
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gathered. If you do that, you'll see that the facts are not as the
Government says."
Later, during her cross-examinations of Black and
McNamara, Colon's attorney returned to this point. In particular,
her questioning revealed that both Black and McNamara had become
aware through their conversations with Colon that English was not
Colon's first language; that they nevertheless did not read him his
rights in Spanish; and that Black could not precisely identify what
had transpired during the portion of the interview time that the
recording had failed to capture.
Finally, during her closing argument, Colon's attorney
returned to the theme that the confessions were unreliable. After
pointing out flaws in other pieces of evidence, she argued that the
confessions were the result of coercive and threatening
circumstances, with a "beaten down" arrestee letting officers put
words into Colon's mouth to help his girlfriend.
Before the jury began deliberations, the district court
drafted an instruction, which it gave to counsel for their review.
In relevant part, it read as follows:
Now, in evaluating testimonial evidence, you should
remember that you're not required to believe something to
be a fact simply because a witness has stated it to be a
fact and no one has contradicted what that witness had to
say.
If in light of all the evidence you believe the
witness is mistaken or has testified falsely or is
proposing something that is just inherently impossible or
unworthy of your belief, then you may disregard that
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witness's testimony even in the absence of contradictory
evidence. You should also bear in mind that it's not the
number of witnesses testifying on any side of a
particular issue that determines where the weight of the
evidence lies, rather it's the quality of the witness's
testimony that counts.
Now, the fact that a witness may be employed by law
enforcement does not by itself mean that you should give
that witness's testimony any greater or any lesser weight
simply because of that fact. You should assess the
credibility and testimony of such witnesses by applying
all the factors, the same factors you would for any other
witness.
. . .
In addition to assessing the credibility of
witnesses and the weight to be given to their testimony,
you should also evaluate the exhibits that you will have
with you in the jury room. So examine them and consider
them carefully, however, bear in mind that merely because
an exhibit has been admitted into evidence does not mean
you are required to accept it at face value. Just like
with the testimony of a witness, the significance of an
exhibit or the weight that you attach to it will depend
on your evaluation of that exhibit in light of all the
facts and all circumstances of the case.
Now, during this trial, you heard two recorded
conversations. These conversations may be considered by
you like any other evidence, and you will have those
recordings with you in the jury room on a disk, the
exhibit, and there'll be a means of playing them if you
wish to play them.
Colon's counsel raised no objection; the trial judge gave
the instruction as drafted; and Colon's counsel again voiced no
objection.
The jury found Colon not guilty on Count 1 (possession of
cocaine with intent to distribute) and Count 4 (possession of a
firearm in furtherance of drug trafficking). It found him guilty
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on Count 2 (possession of less than fifty kilograms of marijuana
with intent to distribute), Count 3 (possession of a firearm after
having been convicted of a crime punishable by imprisonment for
more than one year), and Count 5 (possession of a firearm with an
obliterated serial number).
The district court sentenced Colon to a total of 96
months' incarceration, and Colon timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
II. Standard of Review
Resting his appeal on a single argument, Colon contends
that we should vacate his conviction because the district court
failed to instruct the jury, under section 3501(a), to "give such
weight to the confession as the jury feels it deserves under the
circumstances." We have long held that in order to preserve a
challenge to a jury instruction, a litigant must object when the
instruction is not given in the manner the litigant desires. See,
e.g., United States v. Combs, 555 F.3d 60, 63 (1st Cir. 2009).
Because Colon concedes that he did not so object, we review only
for plain error, see United States v. Gonzalez, 570 F.3d 16, 21
(1st Cir. 2009), a standard that requires an appellant to meet the
"heavy burden" of showing "(1) that an error occurred; (2) that the
error was clear or obvious; (3) that the error affected his
substantial rights; and (4) that the error also seriously impaired
the fairness, integrity, or public reputation of judicial
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proceedings." United States v. Riccio, 529 F.3d 40, 46 (1st Cir.
2008). "[W]hile reversal of a conviction predicated on unpreserved
jury error is theoretically possible, it is the rare case in which
an improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court."
Gonzalez, 570 F.3d at 21 (alteration and internal quotation marks
omitted).
III. Analysis
It is not at all clear that any error occurred here. We
customarily review jury instructions for their substance,
considered as a whole, rather than for any particular magic words.
E.g., Jones v. United States, 527 U.S. 373, 391 (1999) ("Our
decisions repeatedly have cautioned that instructions must be
evaluated not in isolation but in the context of the entire
charge."); United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir.
2009). Viewed as a whole, the jury instructions here fairly--
indeed plainly--told the jury that it could decide for itself the
weight and significance to be given any testimony or exhibits,
specifically including the recorded statements given by Colon at
the police station. The trial court further made clear that the
significance and weight of such testimony and exhibits should
depend on the jury's evaluation of all the facts and circumstances.
Colon nevertheless argues that the instructions fell
short because they were not "consistent with § 3501." Colon argues
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that the instructions as given varied subtly but substantively from
the required instruction because the trial court did not tell the
jury that it could give the confession such weight as it "feels it
deserves." 18 U.S.C. § 3501(a) (emphasis added). Reading much
into these three words, Colon's counsel suggested at oral argument
that the statutory language, unlike the actual instructions given,
encourages the jury to act on its subjective feelings about "what
is the right thing to do with this confession. Not just 'is it
true' but what is the right thing to do with it. And if the police
coerce it, the right thing to do with it is to toss it, and not
consider it."
The distinctions Colon tries to draw between the charge
as given and the language of section 3501 are both unconvincing and
immaterial. Nothing in the statute's language or legislative
history suggests that Congress intended, by the statute's passage,
to abrogate by intimation the general notion that "the district
court has considerable discretion in how it formulates, structures,
and words its jury instructions." See Gonzalez, 570 F.3d at 21(quoting United States v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001))
(internal quotation marks omitted); see also United States v.
Adams, 484 F.2d 357, 362 & nn.3-5 (7th Cir. 1973) (no error to
instruct that "it is for the jury to determine the credibility and
weight to be given such statement with respect to defendant's
innocence or guilt"); United States v. Williams, 484 F.2d 176, 178
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(8th Cir. 1973) (per curiam) ("[Section 3501(a)] does not specify
any particular wording for an instruction on the weight to be
accorded a confession . . . ."). More specifically, we reject the
notion that Congress intended to convey in the word "feels" any
sense that jurors should do something different than evaluate and
assign weight to the evidence based on the facts and circumstances.
The section 3501(a) instruction came about, after all, as part of
an effort to overrule the Supreme Court's decision in Miranda v.
Arizona, 384 U.S. 436 (1966). See Dickerson v. United States, 530
U.S. 428, 436-37 (2000). When the Supreme Court in Dickerson
knocked down the body of that effort, the instruction remained,
like Ozymandias's pedestal, serving little continuing purpose
beyond reminding one of the impermanence of that which it once
supported. We cannot imagine that the Congress that drafted the
original, anti-Miranda statute intended to extend an invitation to
juries to disregard voluntary, credible confessions.
In any event, we need not decide in this case whether the
section 3501 instruction must be given as written if counsel so
insists. Here, as explained above, counsel did not so insist, and
we thus review only for plain error. And on plain error review,
any distinctions in textual connotations between the language of
section 3501 and the language of the instruction as given are too
fine to do the work needed, because they fail to provide a basis
for finding that the outcome of the case would likely have changed
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had the precise language of section 3501 been read. See, e.g.,
United States v. Santos, 131 F.3d 16, 19 (1st Cir. 1997) ("[U]nder
United States v. Olano, 507 U.S. 725, 734, 741 (1993), an error
that occurred without objection at trial--however flagrant--does
not warrant reversal unless it likely affected the outcome."). The
instruction as given clearly told the jury that the weight to be
given to the confessions was up to the jurors in light of all the
facts and circumstances of the case. The broad leeway thus given
provided no cudgel to rebut in deliberations any juror who might
have expressed a "feeling" that the evidence "deserved" no weight.
Counsel argued without restraint against reliance on the
confessions, and the government claimed no ally in the language of
the given instructions to counter such arguments.
We note as well that the jury did not convict Colon of
all the offenses to which he confessed during his interrogations at
the station. Rather, it convicted him only of the offenses to
which he promptly confessed at the scene of the arrest, after
receiving Miranda warnings but before being exposed to most of the
tactics that Colon suggested at trial were coercive. And each of
those confessions was buttressed by physical evidence and
unburdened by the interrogative tactics of which counsel
complained. In short, no one can realistically argue that this
jury did not realize that it could decide how much weight the
confessions deserved. See, e.g., United States v. Walker, 665 F.3d
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212, 231-32 (1st Cir. 2011) (noting that harmless error analysis
"takes into account, among other things . . . any telltales that
furnish clues to the likelihood that the error affected the
factfinder's resolution of a material issue" (internal quotation
marks omitted)).
III. Conclusion
We see no meaningful difference between the instruction
called for by section 3501 and the instruction given at Colon's
trial. Moreover, even were we to assume that a court should more
closely hew to the language of section 3501, any error to that
effect went unchallenged and is unlikely to have affected the
outcome of Colon's trial. We therefore affirm the district court's
judgment.
So ordered.
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