United States v. Cascella

United States Court of Appeals
For the First Circuit
No. 18-1353
UNITED STATES OF AMERICA,
Appellee,
v.
JON CASCELLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, Chief U.S. District Judge]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Ines de Crombrugghe McGillion, with whom Ines McGillion Law
Offices, PLLC was on brief, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Aaron L. Weisman, United States Attorney, was on brief, for
appellee.
November 12, 2019
KAYATTA, Circuit Judge. Jon Cascella was tried and
convicted on seven counts related to possession and distribution
of methamphetamine and two counts related to possession of a
firearm. His defense at trial was that he was entrapped by law
enforcement officers and a confidential informant acting as their
agent. On appeal, he claims that the following trial errors
require reversal: (1) the court allowed the confidential
informant to invoke a blanket Fifth Amendment privilege from
testifying; (2) the government did not provide Cascella with
certain telephone records showing communications he had with the
confidential informant and an undercover officer; and (3) the
government's attorney made improper statements during closing
arguments. For the following reasons, we affirm Cascella's
conviction.
I.
Between March and May 2017, Cascella sold
methamphetamine on six occasions to undercover police detective
Mark Perkins of Warwick, Rhode Island. Cascella was introduced to
Perkins by Bennett, a confidential informant who had recently been
released from prison on probation.
The first transaction between Perkins and Cascella
occurred on March 29. On that occasion, Perkins purchased a small
quantity of methamphetamine for $100 outside a gas station. After
receiving payment, Cascella told Perkins that he had placed the
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methamphetamine in the gas-station bathroom, from which Perkins
then retrieved the drugs. Around this time, Bennett informed
Perkins that Cascella was also interested in acquiring a firearm.
Perkins again purchased methamphetamine from Cascella on
April 4, April 13, April 20, and April 28. The government
attempted to record telephone conversations between Perkins and
Cascella leading up to each of these purchases, although the
equipment failed to record some of these conversations. Some of
the drug exchanges were also recorded on video. According to
Perkins, the Warwick Police Department does not normally record
phone calls. The Department nevertheless began recording the
interactions with Cascella on March 30 at the request of the Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) due to the
"possible involvement" of a firearm.
The sixth and final transaction between Perkins and
Cascella occurred on May 4. Perkins, with the help of undercover
ATF agent Wing Chau, had arranged a drugs-for-firearm trade.
Cascella gave Chau approximately seven grams of methamphetamine,
and Chau gave Cascella a Bryco .380 handgun and $600 cash.
Officers arrested Cascella immediately after this transaction. A
search of Cascella's home later that day turned up additional
methamphetamine and a smoke grenade. Following his arrest,
Cascella told the police that he had been selling drugs to four
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different customers and that he wanted a gun for protection because
he had previously been robbed.
A grand jury indicted Cascella on nine counts: four
counts of distribution of methamphetamine to Perkins on March 29,
April 4, April 13, and April 20 in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C); two counts of distribution of five grams
or more of methamphetamine to Perkins on April 28 and May 4 in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); one count of
possession with intent to distribute five grams or more of
methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B);
one count of possession of a firearm in furtherance of drug
trafficking in violation of 18 U.S.C. § 924(c)(1)(A); and one count
of being a felon1 in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2).
The government's evidence that the drug and gun
transactions occurred, backed by videos, phone recordings, and the
testimony of Perkins and Chau, was overwhelming. Cascella
nevertheless pleaded not guilty and went to trial, contending that
he was merely a drug user whom Bennett and Perkins entrapped into
selling drugs and buying a firearm. Cascella proceeded pro se
with standby counsel for part of the trial, then switched to hybrid
representation partway through. After closing arguments, the jury
1 Cascella had twice previously been convicted of robbery,
serving approximately eight years total.
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returned a verdict of guilty on all counts. The court denied
Cascella's motions for a new trial and acquittal. Cascella timely
appealed.
II.
A. Privilege Against Self-Incrimination
Cascella challenges the district court's decision
allowing the confidential informant, Bennett, to avoid taking the
stand at trial based on a blanket assertion of his Fifth Amendment
right not to incriminate himself. Reliance on a blanket assertion
of privilege that deprives a defendant of his ability to call a
relevant witness to testify is "extremely disfavored." In re Grand
Jury Matters, 751 F.2d 13, 17 n.4 (1st Cir. 1984) (quoting In re
Grand Jury Witness (Salas), 695 F.2d 359, 362 (9th Cir. 1982));
see United States v. Santiago, 566 F.3d 65, 70 (1st Cir. 2009);
United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1997). We
have nevertheless at least once allowed such a blanket assertion
of privilege when the district court itself confirmed the witness's
inability to offer any relevant, non-privileged testimony. See
United States v. Acevado-Hernández, 898 F.3d 150, 168–71 (1st Cir.
2018). And we have also on one occasion sustained a similar
decision made after the district court interrogated the witness
and determined that any non-privileged testimony would be
confusingly disjointed and would not substantially advance an
entrapment defense. See Santiago, 566 F.3d at 70-71.
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Here, the district court neither questioned the witness,
nor allowed counsel to question the witness, relying instead on
the representations of the witness's appointed counsel, whose
understandable aim was to keep his client off the stand.
Nevertheless, we need not decide whether the handling of the
privilege-pleading witness was error. Rather, we agree with the
government that even if there was error, it was harmless. See
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); see also United
States v. Kaplan, 832 F.2d 676, 685 (1st Cir. 1987) (deciding an
improper assertion of privilege was harmless error).
Cascella's only proffered reason for calling the witness
was to aid his entrapment defense. To Cascella's benefit, the
trial judge let the entrapment defense go to the jury. For the
following reasons, though, the entrapment defense was so weak that
it need not have gone to the jury, even with the evidence that
Cascella claims he might have secured from Bennett.
"Entrapment is an affirmative defense." United States
v. Vasco, 564 F.3d 12, 18 (1st Cir. 2009). To present this
affirmative defense, a defendant must first carry the burden of
production, measured by the sufficiency-of-the-evidence standard.
United Sates v. Díaz-Maldonado, 727 F.3d 130, 137 (1st Cir. 2013);
United States v. Rodriguez, 858 F.2d 809, 812–14 (1st Cir. 1988).
Carrying that burden of production requires proof, first, of
"government overreaching," such as "'intimidation, threats, dogged
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insistence,' or 'excessive pressure' directed at the target of an
investigation by a government agent." Díaz-Maldonado, 727 F.3d at
137 (quoting Vasco, 564 F.3d at 18). The record in this case
contains no evidence of any such overreaching. At most, it paints
a picture of a government invitation to accept a government-created
opportunity to commit a crime. But the law "expect[s] innocent
persons to decline such opportunities in the absence of some
additional importuning by the government." Id.So we ask whether the hoped-for, non-privileged
testimony from Bennett might have filled in this hole in Cascella's
entrapment defense. Cascella tells us that Bennett would have
admitted to working with the police, but that is neither contested
nor sufficient. Presumably most confidential informants work with
and seek to curry favor from the police. Such a relationship may
make the informant's conduct attributable to the police, see id.at 138–39, but it says too little about the nature of the
informant's contact with the defendant to support an entrapment
defense. Cascella claims that Bennett would have also admitted to
suggesting that Cascella get a gun, or even encouraging him to do
so. But, as we have explained, offering "an 'opportunity' to
commit a crime" falls far short of the type of government
overreaching that constitutes entrapment. United States v.
Gendron, 18 F.3d 955, 961 (1st Cir. 1994) (quoting Sorrells v.
United States, 287 U.S. 435, 441 (1932)).
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Nor need we entertain the possibility that Bennett might
have said something in his testimony that exceeded the scope of
Cascella's proffer. The hypothesis that frames our inquiry posits
that Bennett brought undue pressure to bear on Cascella. Were
that so, Cascella would obviously be aware of what testimony
Bennett might have to help build such a defense; hence, we can
expect Cascella's proffer to exhaust the plausible scope of any
favorable testimony.
Cascella's contention that testimony from Bennett might
have supported a feasible entrapment defense fares even worse when
placed in context. The day after the first methamphetamine
purchase, Cascella had the following conversation with Perkins, as
recorded by the police:
PERKINS: . . . are you with Joe [Bennett]
today? He called me.
CASCELLA: Yeah.
PERKINS: Oh, he said you might be interested
in trying to get something?
CASCELLA: Ah, no. I just wanted to know what
the prices ra-, range.
PERKINS: Yup. Um, I don't - I mean, I know
somebody where I can get them.
CASCELLA: Yeah.
PERKINS: Um, do you know what kind you're
looking for?
CASCELLA: Ah, just for self-protection.
PERKINS: No, I know. Like ah . . .
CASCELLA: [voice inaudible]
PERKINS: . . . like ah . . .
CASCELLA: [voice inaudible]
PERKINS: . . . a semi-automatic or a
revolver?
CASCELLA: Whatever's easiest.
PERKINS: Okay.
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CASCELLA: Just not auto.
PERKINS: What's that? I'm sorry.
CASCELLA: Probably semi-auto, right?
PERKINS: Yeah, yeah. Yup. Um, all right.
What ah, m-, my boy is totally cool. Ah, he's
always asking me if you ever want, want one.
And basically, I, I never got one 'cause I'd
probably shoot myself foot, in the foot. But
um . . .
CASCELLA: I just want it for my own personal
protection.
PERKINS: Yeah. No, I hear you. Um, what -
if he's into the shit that I'm into, you know,
the, the meth, would you be willing to . . .
CASCELLA: Uh-huh.
PERKINS: . . . trade? Ah, ah, I haven't
talked to him or anything. I just wanted to
talk to you first, you know, ah.
. . .
PERKINS: . . . he, he's the shit. Um, what
was I gonna say? Yeah, I mean, he, he likes
that shit. So I didn't know if you could -
you know, wanted to trade some of that for
that or if you . . .
CASCELLA: I ah, you have to give me a number,
so I, I get an idea.
PERKINS: Okay. Yeah, I mean, like I said, I
ha-, I haven't even talked to him or anything.
Um . . .
CASCELLA: Yeah, just ah, give him a call.
Give him a call.
. . .
PERKINS: . . . what are you looking to spend
if ah, if it was like money?
CASCELLA: I'm probably looking to spend ah,
ah, less than two.
PERKINS: Okay. All right. All right.
CASCELLA: I just want it just for myself,
even if it's a two shooter, two, two shooter,
you know?
PERKINS: Right, okay. All right.
CASCELLA: Yeah, I want the man know that's
the cheapest you can get me, dude.
PERKINS: No, I hear you. I hear you. I
don't know if - again, I don't - I'm not a
gun nut, so I don't know how much they cost.
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CASCELLA: Me neither. Ah, I ain't, either.
That's why I said as long as it - if, if, if
it fires, I won't miss.
Nothing in this conversation -- even as supplemented by
the hoped-for testimony by Bennett -- suggests that anyone badgered
Cascella into acquiring a gun against his own disposition. To the
contrary, Perkins offered Cascella reason not to get a gun,
explaining why Perkins did not have one. See Vasco, 564 F.3d at
19 (observing that government conduct is not overreaching where an
officer gives the defendant an "opportunity to back away from the
crime"). In addition to this call, the jury heard Cascella's
recorded, post-arrest confession in which he stated that he had
been selling drugs to four different customers and that he wanted
a gun for protection because he had previously been robbed. And
Perkins testified that Cascella had previously said that "normally
he charges $450" for an "eight ball"2 of methamphetamine.
Even viewing Cascella's proposed evidence, as we must,
"in the light most favorable to the accused so as to determine
whether the record supports an entrapment theory," United States
v. Shinderman, 515 F.3d 5, 13 (1st Cir. 2008), we agree that
Cascella's defense was -- in the government's words -- "hopeless."
On this record, the district court need not have put the entrapment
defense to the jury. See Díaz-Maldonado, 727 F.3d at 139. A
2 According to Perkins and Chau, "eight ball" is a slang term
meaning one-eighth of an ounce of drugs.
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fortiori, the failure to allow Cascella a chance to elicit from
Bennett the proffered, possibly non-privileged testimony was
harmless beyond a reasonable doubt.
Four somewhat related loose ends remain. First,
Cascella argues on appeal that the district court's observation
that Cascella could testify himself about his conversations with
Bennett "unreasonably burden[ed] Cascella's right not to testify."
But Cascella had already clearly signaled to the district court
that he planned to testify, claiming in his opening statements at
trial that he would testify and only deciding not to do so after
the court's ruling that Bennett would not take the stand. In any
event, any possible error in this regard would suffer from the
same harmless-error problem. Second, Cascella argues for the first
time in his reply brief that the government could have granted
Bennett formal immunity under 18 U.S.C. § 6003. See Note, The
Sixth Amendment Right to Have Use Immunity Granted to Defense
Witnesses, 91 Harv. L. Rev. 1266 (1978); see also United States v.
Quinn, 728 F.3d 243, 251 n.1 (3d Cir. 2013) (en banc); Curtis v.
Duval, 124 F.3d 1, 9 (1st Cir. 1997). That issue was not properly
preserved, so we do not address it. See United States v. Tosi,
897 F.3d 12, 15 (1st Cir. 2018) ("[A]rguments available at the
outset but raised for the first time in a reply brief need not be
considered."). Third, for that same reason, we do not address the
argument, also raised for the first time in the reply brief, that
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Bennett may have waived any claim of privilege by speaking with
the government attorney and federal agents the day before appearing
at trial. Fourth, we are not deciding whether Cascella could have
requested a jury instruction that a confidential informant was
unavailable to testify, or had pleaded the Fifth. Cascella never
requested a jury instruction about Bennett's refusal to testify,
and he does not raise the issue on appeal. So, we need not decide
whether such an instruction would be appropriate or the precise
contours of such an instruction. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (requiring an argument on appeal to
be sufficiently developed in the appellant's opening brief).
B. Brady Challenge
Cascella's next argument arises from what at best can be
described as the government's sloppy handling of information it
obtained prior to trial concerning his phone usage. The government
subpoenaed T-Mobile for records of Cascella's cellphone usage
between March 8 and May 4, the day of his arrest. Rather than
turning over to Cascella the data as received from T-Mobile, the
government put it into a spreadsheet, which it then produced to
Cascella, describing it as "toll records received pursuant
to . . . subpoena listing call times by EST, rather than GMT as
originally provided by the carrier." The government also extracted
call data from Cascella's phone (including the SIM card). It then
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sent a DVD to Cascella, describing it as "a DVD containing the
report of data extraction from your cellular telephone."
After trial, Cascella's counsel obtained the actual
customer cellphone records (rather than just the data) directly
from T-Mobile. Those more extensive T-Mobile records showed eleven
additional contacts between 1:45 p.m. and 8:45 p.m. on March 29.
Those contacts consist of three texts from Bennett, a 75-second
call from Bennett, another text from Bennett, a 50-second call
from Perkins, a text from Perkins, a 25-second call from Perkins,
a 19-second call from Cascella to Bennett, a 5-second call from
Cascella to Bennett, followed by a 71-second call from Bennett to
Cascella. None of the records revealed the substance of any
communications, other than that the phone calls were extremely
brief. With the additional records in hand, Cascella moved for a
new trial. He claimed that the government had manipulated the
data provided to him to hide those contacts. And he claimed as
well that the government had destroyed and not produced additional
text data that he says should have been extractable from his
cellphone.
The hearing that ensued produced a confusing record
concerning what happened. Understandably suspicious given the
apparent disparity in the records, Cascella asserted that the
government had manipulated and hidden data confirming his
additional contacts with Bennett and Perkins prior to March 30.
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Government counsel added to the cause for suspicion by telling the
court, imprecisely and incorrectly, "[w]hat we got, we turned
over." Less imprecisely, the government flatly denied destroying
or concealing anything, attributing the difference in the data to
differences in what it received from T-Mobile and what T-Mobile
provided in a different form to its customer.
The district court resolved all of this by turning to
the issue of prejudice. A Brady violation calls for a new trial
only if, among other things, "the defendant was prejudiced by the
suppression [of evidence] in that there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different." United States v.
Del-Valle, 566 F.3d 31, 40 (1st Cir. 2009); see Brady v. Maryland,
373 U.S. 83, 87 (1963). "We review the denial of a new-trial
motion on the basis of an alleged Brady violation for manifest
abuse of discretion." United States v. Martínez-Mercado, 919 F.3d
91, 104–05 (1st Cir. 2019).
The record in this case includes recordings and videos
of Cascella selling drugs to Perkins in a manner that makes clear
Cascella had done it before. It also contains the transcript of
his conversation with Perkins concerning the gun, which occurred
after the missing calls. Nothing that Cascella said during that
conversation reads as if he had previously been unduly pressured
by anyone to get a gun against his own disposition. Furthermore,
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Cascella's contention that the evidence of the additional calls
would have helped him reveals only that he misunderstands the
burden of generating an entrapment defense. Although a party to
all the calls, he makes no proffer that Bennett or Perkins said
anything on those calls that would constitute the type of
overreaching conduct required to prove entrapment.
Cascella also wished to use the phone records to impeach
Perkins's testimony that he had only called Cascella once prior to
March 30. The customer records provided directly by the carrier
show an additional 25-second call. But there is no claim by
Cascella that Perkins said anything in that brief call that would
give rise to an entrapment defense. As we have said before, "there
is no Brady violation compelling a new trial when the belatedly
supplied evidence is merely cumulative or impeaching on a
collateral issue." Id. at 105.
C. Closing Arguments
Finally, we consider Cascella's challenge to the
government's statements in closing arguments. During closing
arguments, the government frequently referred to Cascella as a
"drug dealer." For example,
THE GOVERNMENT: Look, the Defendant was a
drug dealer . . . .
. . .
THE GOVERNMENT: [T]he Defendant revealed
many aspects of his being a drug dealer.
. . .
THE GOVERNMENT: He's a quality dealer.
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. . .
THE GOVERNMENT: The undercover officers in
this case presented a drug dealer an
opportunity to do what the drug dealer does:
Deal drugs. And he dealt drugs. . . . [H]e's
a drug dealer. He dealt drugs because he's a
drug dealer and he wanted to deal drugs.
The government also said, in reference to a video played
for the jury of Cascella slipping methamphetamine into the center
console of a car rather than handing it directly to Perkins, that
"[t]his is not something a novice does. This is learned behavior,
concealment of what you're doing. This is not his first rodeo.
He's been doing this a while."
The government also made the following comment in
reference to a recorded phone call played for the jury between
Perkins and Cascella in which Perkins had referred to the March 29
bathroom exchange:
THE GOVERNMENT: This transaction at the
Speedway [gas station] on April [sic] 29th
involved Perkins having to go into a bathroom,
collect the drugs from on top of a fire alarm
or a fire box. Detective Perkins repeatedly
referenced that. As you might understand, he
was interested in obtaining the drugs and
moving on. He didn't want to be out of his
car. He didn't want to go into bathrooms.
He didn't want to get into that, so he kept
referencing that in subsequent calls and in
subsequent meetings. Not once do you hear
the Defendant, What are you talking about,
what bathroom?
Defendant is telling you that the
March 29th transaction occurred. Defendant
is telling you that that phone call occurred.
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Cascella failed to make contemporaneous objections to
these statements, so our review is for plain error. See United
States v. Salley, 651 F.3d 159, 164 (1st Cir. 2011). "Plain error
requires a showing (1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." Id.(quoting United States v. Landry, 631 F.3d 597, 606 (1st Cir.
2011)).
Cascella first challenges the government's repeated
reference to him as a "drug dealer," claiming that such statements
were "extremely prejudicial." It is elementary that prosecutors
may not present their own personal opinions to the jury. See
Greenberg v. United States, 280 F.2d 472, 474–75 (1st Cir. 1960);
Restatement (Third) of the Law Governing Lawyers § 107 (Am. Law
Inst. 2000). Calling Cascella a "drug dealer" could arguably be
viewed by some people as a form of vouching; i.e., offering the
prosecutor's own opinion of the defendant's guilt. Cautious
government attorneys might avoid this potential problem by saying
instead, "the evidence shows that the defendant is a drug dealer."
But that could become quite repetitious, and trial courts, as here,
generally remind jurors that comments and statements made by the
government's attorneys are not evidence. In any event, we have
not found a failure to employ such a finely parsed phrasing
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prejudicial, even in opening statements, at least where the record
contained ample evidence to support the contention that the
defendant was a drug dealer. See United States v. Capelton, 350
F.3d 231, 237–38 (1st Cir. 2003) (finding no prejudice from the
government's reference to defendants as "drug dealers" in opening
statements).
In this case, the government directly supported its
assertion by pointing to the record evidence and did not claim any
knowledge based on evidence outside the record. In context, the
belatedly challenged statements plainly read more like "the
evidence shows he is a drug dealer" than "I think he is a drug
dealer." We see no plain error here.
Cascella makes a slightly different argument concerning
the statement that "[t]his is not his first rodeo." According to
Cascella, this statement "impermissibly raises facts not in
evidence and suggests the government has special access to
unadmitted evidence of prior misconduct of unspecified duration
and frequency." We are not persuaded. It is true that government
attorneys may not "impl[y] that [a] witness's testimony is
corroborated by evidence known to the government but not known to
the jury." United States v. Valdivia, 680 F.3d 33, 48 (1st Cir.
2012) (second alteration in original) (quoting United States v.
Francis, 170 F.3d 546, 551 (6th Cir. 1999)). But here the comment
was made in reference to a video of Cascella performing an evasive
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maneuver that a juror could assume was a behavior learned from
drug dealing. We see no reason why the government could not point
this out, nor was there anything unfair about the colloquial
language used to make the point.
Lastly, Cascella argues that one of the government's
statements impermissibly brought to the jury's attention
Cascella's refusal to testify on his own behalf. Government
attorneys may not comment to the jury on a defendant's decision
not to testify. See Griffin v. California, 380 U.S. 609, 613
(1965); United States v. Wihbey, 75 F.3d 761, 769 (1st Cir. 1996).
In support of his argument, Cascella points to the prosecutor's
statement that "[n]ot once do you hear the Defendant, What are you
talking about, what bathroom?" Again, context matters. This
comment was part of a description of a phone call between Perkins
and Cascella about the March 29 gas-station-bathroom transaction.
The prosecutor was not saying "[n]ot once d[id] you hear the
Defendant" testify that he did not put drugs in the bathroom. He
was clearly saying "[n]ot once do you hear the Defendant" in this
phone call deny knowledge of the previous transaction. The former
would be improper in a case where the defendant did not take the
stand, but the latter is permissible.
Finding no error as to any of Cascella's challenges to
the closing arguments, we need not consider the remaining elements
of plain-error review.
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III.
For the foregoing reasons, we affirm Cascella's
conviction.
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