United States v. Melo

United States Court of Appeals
For the First Circuit
No. 18-2147
UNITED STATES OF AMERICA,
Appellee,
v.
JAMIE L. MELO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Gary G. Pelletier, with whom Pelletier Clark & Caley, LLC was
on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
March 27, 2020
BARRON, Circuit Judge. Jamie Melo challenges his 2017
convictions, which arise from the investigation into a criminal
scheme involving Carlos Rafael. Colloquially known as the
"Codfather," Rafael owned numerous commercial fishing businesses
in the New Bedford, Massachusetts, area and was the leader of a
conspiracy that smuggled unreported cash-income from his
businesses to his personal bank accounts in the Azores, which are
Portuguese islands in the Atlantic Ocean. Melo's convictions
stemmed from his role in assisting Rafael in smuggling cash through
Logan International Airport in Boston and onto a plane headed to
the Azores in the fall of 2015. The convictions were for one count
of conspiracy, in violation of 18 U.S.C. § 371, and one count of
structuring the export of monetary transactions, in violation of
31 U.S.C. § 5324(c)(3). Finding no merit to Melo's challenges to
these convictions, we affirm.
In early 2015, the United States Internal Revenue
Service ("IRS") began investigating Rafael after learning that he
had not reported some of his taxable income. Undercover IRS
agents, feigning interest in buying one of Rafael's businesses,
soon learned that he was taking unreported cash with him on flights
to the Azores and depositing the cash in a bank account that he
maintained there.
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Rafael explained to the undercover agents that he was
able to smuggle cash through the airport because he had a
connection in the Bristol County Sheriff's Office in
Massachusetts, Antonio Freitas, who could help him get past airport
security. Rafael also told them that Jamie Melo was a friend of
his in the Bristol County Sheriff's Office.
Rafael later told the undercover agents that he was
planning a trip to the Azores on November 10, 2015. He repeatedly
declined the undercover agents' requests, however, to carry money
for them on that flight.
When these agents first asked Rafael to do so, he refused
to carry their money and suggested that they "would never meet"
Freitas. In rejecting a second request from the undercover agents
to carry their money with him, one of the undercover agents
testified that Rafael refused to do so because there would "be law
enforcement officers with him from the Sheriff's Office and he did
not feel comfortable with those individuals with him to be
smuggling the cash."
On the day of the planned trip, federal law enforcement
agents set up surveillance to track the movements of Rafael and
his travel companions at the airport. Melo, who was also traveling
to the Azores that day to manage the "Thanksgiving in the Azores"
program that he ran through the Bristol County Sheriff's Office,
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arranged for a Sheriff's Office van to pick up other passengers,
including Rafael, who were taking the same flight to the Azores.
Before going through security at the airport, Melo met
with three of the other Azores-bound travelers in a public
restroom. He asked them if they could carry envelopes for Rafael
onto the plane.
When Rafael went through the security checkpoint, agents
for the United States Transportation Security Administration
("TSA") discovered that he was carrying $27,000 in cash on his
person. In response, the TSA agents directed Rafael to a United
States Customs and Border Patrol window, where he could declare
the currency.
Rafael then joined Melo on the plane. The two sat
together in first class. When the plane landed, the envelopes
found their way back to Rafael. Soon thereafter, he deposited
$76,000 in cash in his personal bank account in the Azores.
Law enforcement continued investigating the
cash-smuggling scheme after the November 10, 2015, trip. Sometime
thereafter, in consequence of that investigation, Rafael pleaded
guilty to charges of conspiracy, bulk cash smuggling, and tax
evasion. Freitas, for his part, was convicted of related crimes
after a jury trial.
On August 30, 2017, Special Agent Alison Pauley ("SA
Pauley") of the Federal Bureau of Investigation and Special Agent
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Michael Ryan ("SA Ryan") of the United States Department of
Homeland Security traveled to Melo's home to request an interview
with him regarding the November 2015 trip to the Azores. Melo
consented to an interview and invited the agents into his
residence.
During the course of the interview, which Melo's
attorney John Zajac participated in by phone, Melo admitted, among
other things, to having passed out envelopes on Rafael's behalf to
other passengers on the trip and to having carried an envelope for
Rafael on the November 10, 2015, flight. Melo also stated that he
only began to suspect that the envelopes contained cash after the
TSA agents had stopped Rafael and forced him to report his
currency.
On October 25, 2017, a grand jury in the District of
Massachusetts handed down a three-count indictment against Melo.
The indictment charged him with having engaged in conspiracy, in
violation of 18 U.S.C. § 371 (count one), bulk cash smuggling and
aiding and abetting, in violation of 31 U.S.C. § 5332(a) and 18
U.S.C. § 2 (count two), and structuring the export of monetary
transactions, in violation of 31 U.S.C. § 5324(c)(3) (count
three). A jury found him guilty on counts one and three. The
District Court subsequently sentenced Melo to one year of
probation. Melo timely filed his notice of appeal ten days later.
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We start with Melo's challenge, based on Miranda v.
Arizona, 384 U.S. 436 (1966), to the District Court's denial of
his motion to suppress statements that he made to SAs Pauley and
Ryan during the August 30, 2017, interview. The District Court
rejected the motion on the ground that, although it was not "an
easy [case]," Melo did not need to be given the Miranda
warnings -- which were given only after he had been arrested
following the conclusion of that interview -- before or during the
interview because Melo was not then in custody.
When reviewing a district court's decision on a motion
to suppress, we consider its "conclusions of law de novo and its
factual findings, including its credibility determinations, for
clear error." United States v. De La Cruz, 835 F.3d 1, 5 (1st
Cir. 2016). In the Miranda context especially, we are reluctant
to disturb the district court's suppression decision, such that
"[i]f any reasonable view of the evidence supports the denial of
a motion to suppress, we will affirm the denial." United States
v. Boskic, 545 F.3d 69, 77 (1st Cir. 2008).
Because there is no dispute that the agents subjected
Melo to an interrogation through the questions that they asked
during the interview, see United States v. Sanchez, 817 F.3d 38,
44 (1st Cir. 2016) ("Interrogation for Miranda purposes includes
'any words or actions on the part of the police . . . that the
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police should know are reasonably likely to elicit an incriminating
response from the suspect.'" (quoting Rhode Island v. Innis, 446
U.S. 291, 301 (1980))), "the need for a Miranda warning" in this
case "turns on whether a suspect is in custody," United States v.
Swan, 842 F.3d 28, 31 (1st Cir. 2016) (quoting United States v.
Hughes, 640 F.3d 428, 435 (1st Cir. 2011)). We employ a two-step
process for making that determination.
"[T]he initial step is to ascertain whether, in light of
'the objective circumstances of the interrogation,' a 'reasonable
person [would] have felt he or she was not at liberty to terminate
the interrogation and leave.'" Howes v. Fields, 565 U.S. 499, 509
(2012) (second alteration in original) (first quoting Stansbury v.
California, 511 U.S. 318, 322-23 (1994) (per curiam) and then
quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). We have
previously identified a nonexhaustive number of circumstances that
are relevant to this aspect of our custody analysis, including
"whether the suspect was questioned in familiar or at least neutral
surroundings, the number of law enforcement officers present at
the scene, the degree of physical restraint placed upon the
suspect, and the duration and character of the interrogation."
Swan, 842 F.3d at 31 (quoting United States v. Masse, 816 F.2d
805, 809 (1st Cir. 1987)). In conducting this analysis, we must
keep in mind that a finding of custody "depends on the objective
circumstances of the interrogation, not on the subjective views
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harbored by either the interrogating officers or the person being
questioned." Stansbury, 511 U.S. at 323.
This inquiry into "whether an individual's freedom of
movement was curtailed, however, is simply the first step in the
analysis, not the last." Howes, 565 U.S. at 509. Once we complete
the freedom-of-movement step, we must still ask "the additional
question whether the relevant environment presents the same
inherently coercive pressures as the type of station house
questioning at issue in Miranda." Id.
In considering the circumstances in which the
questioning took place here, we note at the outset that the
interview was conducted in Melo's home. That is of some
significance because, although "a suspect's dwelling may at times
comprise a custodial interrogation, such a location generally
presents a less intimidating atmosphere than, say, a police
station." Hughes, 640 F.3d at 435-36 (internal citation omitted)
("[I]t is important to note that the interview occurred in
surroundings familiar to the defendant: his own home.").
In addition, we note, only two armed officers were
present for the questioning, see id. at 436 (finding that having
only two officers involved in the interview, even if two more were
present nearby, was not enough to make the interrogation
custodial), and neither one brandished his or her weapon in Melo's
presence during the questioning. The only other law enforcement
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personnel present, moreover, were two plainclothes computer
technicians who entered Melo's home to search his phone and
computers but had no direct contact with Melo.
Finally, we note two other features of the setting in
which the interview occurred that support the District Court's
custody ruling. The first is that, although the agents were in
Melo's home for more than three hours, they repeatedly interrupted
their questioning, at Melo's request, to ensure that his attorney,
Zajac, could participate by phone. The second is that the District
Court determined that the agents' tone during their questioning of
Melo was cordial and professional throughout the questioning.
Nevertheless, Melo contends that the District Court
erred in finding that the setting for the interview was not
custodial, in part because he contends that the record clearly
shows that the agents "communicate[d] . . . to Melo and his
attorney" their intention to arrest Melo if he "was not truthful
and cooperative." Melo asserts that this point is critical,
because even though "a police officer's subjective view that the
individual under questioning is a suspect, if undisclosed, does
not bear upon the question whether the individual is in custody
for purposes of Miranda," Stansbury, 511 U.S. at 324, when agents
do convey an intent to arrest the defendant, as he alleges clearly
occurred here, that fact should figure into the custody analysis.
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Yet, Melo contends, the District Court failed to factor the
statements that he alleges that the agents made into its analysis.
Even if we assume that Melo's legal contention about the
significance of the officers' alleged statements has force, cf.
id. at 325 ("An officer's knowledge or beliefs may bear upon the
custody issue if they are conveyed, by word or deed, to the
individual being questioned."), he still needs to show that the
District Court clearly erred in declining to find that those
officers in fact made those statements. To make that case, Melo
points to testimony that both he and his attorney Zajac gave at
the suppression hearing. Zajac testified, for example, that he
asked the agents "if their intention was to arrest [Melo]," to
which they responded that "they were unsure if they were going to
arrest [Melo] or not, it depended upon his cooperation." And Melo
testified to the same effect.
Moreover, Melo notes, neither of the agents denied in
their own testimony at that hearing that Zajac asked them whether
they intended to arrest Melo. Rather, they merely stated that
they could not remember Zajac asking that question. For example,
when asked if "Attorney Zajac asked you whether you were definitely
going to arrest [Melo]," SA Ryan responded that he did not "recall
that question being asked."
But, a review of the record shows that, although the
agents said they did not recall if Zajac specifically asked them
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whether they intended to arrest his client Melo, both agents were
unequivocal in stating that they did not convey an intention to
arrest Melo if he failed to cooperate. For example, when asked
whether it "[w]as . . . ever communicated to [Melo] that he was
going to be arrested if he didn't cooperate," SA Pauley responded,
"[n]o." In addition, SA Ryan affirmed that they never disclosed
their intention to arrest Melo that day.
Thus, nothing Melo points us to in the record indicates
that the District Court clearly erred in declining to find that
the agents expressed an intention to arrest Melo if he failed to
cooperate with their questioning, as Melo contends that they did.
See United States v. Martin, 749 F.3d 87, 97 (1st Cir. 2014) ("A
district court's plausible interpretation of the facts cannot be
rejected on clear error review just because the record might
sustain a conflicting interpretation.").
In addition, the record shows that Melo did not include
his assertion about the agents expressing an intent to arrest him
in his initial affidavit giving an account of the interview;
instead, he made this assertion for the first time at the hearing
on the motion to suppress. As a result, the District Court
supportably could have found that the account that Melo gave at
the hearing of what had transpired was less than convincing.
Considering the record as a whole, therefore, Melo's challenge to
the District Court's custody analysis fails insofar as it depends
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on the record requiring us to conclude that the agents told Melo
that he would be arrested if he did not cooperate with them during
the interview.
Melo nonetheless notes that, even if the District Court
did not err in declining to find that the agents expressed an
intention to arrest Melo if he failed to cooperate, the District
Court did find that the agents told Melo that he was a "target" of
their investigation. And, Melo asserts, "[t]hat disclosure,
alone, even without the statement about cooperation, is more than
sufficient to create a custodial situation."
To support that proposition, Melo cites to United States
v. Chan Hok Shek, No. CRIM.A. 08-10317-DPW, 2010 WL 4694448, at *7
(D. Mass. Nov. 10, 2010). But, Chan Hok Shek itself
states -- rightly -- that "even if" agents inform a defendant "that
he was a suspect, . . . that would not necessarily mean he was in
custody for purposes of Miranda." Id.; see also Stansbury, 511
U.S. at 325 ("Even a clear statement from an officer that the
person under interrogation is a prime suspect is not, in itself,
dispositive of the custody issue, for some suspects are free to
come and go until the police decide to make an arrest."). Thus,
the mere fact that the agents told Melo that he was a target of
their investigation does not, on its own, convince us that Melo
held an objectively reasonable belief that he could not terminate
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the interaction with the agents, such that the setting was
custodial.
To be sure, Melo contends that there is more in the
record to support a finding that he was in custody than that he
was told by the agents that he was a "target" of their
investigation. Melo argues, in particular, that if the District
Court had taken full account of the restraints on his movement
that he contends were placed on him while he was questioned by the
agents, then the agents' statement about him being a target of
their investigation, when combined with their having imposed those
restraints, compelled a finding that he was in custody during their
questioning of him.
To support that contention, Melo points to various
instances in which he argues the District Court either made an
erroneous factual finding, such as by concluding "that, during the
interview, Melo got up from his table and got water," even though
one of the agents testified to contrary, or failed to analyze
certain facts evidencing Melo's restricted movement, including an
unresolved dispute about whether Melo was free to get his own
diabetes medication. Melo further contends that the District Court
improperly considered the subjective beliefs of the agents in
dismissing the relevance of key facts concerning his freedom of
movement during the interview, such as when the District Court
concluded that SA Ryan watching Melo walk down the hallway to the
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bathroom had "more to do with the firearms that the agents knew
remained in the bedroom and [was] not indicative of restraints on
Melo akin to custody."
But, we are not persuaded. Melo's contention that the
District Court clearly erred in finding that he was free to get
himself water during the interview fails because there was ample
testimony at the suppression hearing to the effect that Melo was
free to get up and grab himself water. That the record also shows
that one of the agents once got water on Melo's behalf does not
persuade us that the District Court clearly erred in finding as it
did on that score, especially when the agents testified that they
never told Melo that he could not leave the kitchen table or
otherwise move about his home.
Melo is correct that the District Court failed to resolve
the factual dispute about whether Melo or one of the agents
retrieved Melo's diabetes medication during the interview. But,
given the other testimony that was provided at the hearing
regarding Melo's freedom of movement, which included undisputed
testimony that Melo did move around his home at various points
during the interview, we find the resolution of this one factual
dispute immaterial to the determination of whether the District
Court's overall custody analysis is supported by the record. See
Swan, 842 F.3d at 31; Boskic, 545 F.3d at 77 (noting that "we will
affirm the denial" of a suppression motion if there is "any
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reasonable view of the evidence [that] supports the" district
court's decision).
That leaves us with Melo's contention that the District
Court improperly analyzed the significance of SA Ryan monitoring
Melo as Melo proceeded to use the bathroom. But, even if we set
aside any consideration of the subjective motivation of the agents
and focus solely on the intrusiveness of the agents' monitoring,
see Hughes, 640 F.3d at 436 ("While escorting a suspect throughout
his home may have some bearing on the custody inquiry, there is no
evidence that the troopers followed the defendant so closely as to
intrude upon any intimate moment or private activity." (internal
citation omitted)), the District Court here found that SA Ryan
"observed [Melo] closely when he had to go to use the bathroom
. . . , but did not go into the bathroom with him." As Melo does
not argue that any aspect of the District Court's factual finding
on this point was erroneous, see United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990), we do not see how this finding suffices
to compel a conclusion that his movements were so restricted as to
warrant a finding that he had been placed in custody.
Finally, we reject Melo's contention that his case is no
different than United States v. Bullins, a district court case
from within this Circuit that found that a defendant who was
interrogated in his own home was in custody for Miranda purposes.
880 F. Supp. 76, 78-80 (D.N.H. 1995). In Bullins, police detained
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and separated the defendant and his wife, before executing a search
warrant on the defendant's home. See id. at 77. After the search
commenced, the defendant entered the home with the police and
agreed to speak with an officer for questioning. See id. But,
because the "defendant was directed to remain seated at his kitchen
table," the district court found that "[a]lthough he was neither
handcuffed nor formally placed under arrest at any time, defendant
was not free as a practical matter to either leave or move about
his home while the search was under way." Id. at 77-78. Meanwhile,
"[f]our or five agents, who were armed and dressed in raid jackets,
carried out the search." Id. at 78. These circumstances, the
district court concluded, placed the case "somewhere in the gray
area between a plainly custodial and plainly non-custodial
interrogation," but the district court ultimately found that the
setting was custodial. Id.
Melo posits that "most, if not all, of the Bullins
factors are present" in his case. Melo, however, was never told
that he could not leave the kitchen, his home was not full of armed
agents during the questioning, and there was no indication that
law enforcement purposely separated Melo from his wife at the
beginning of the interview. Rather, Melo's wife arrived at the
home after Melo was placed under arrest. Thus, even if we assume
that Bullins was rightly decided, it addresses a significantly
different setting from the one in which Melo was questioned.
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Accordingly, it supplies no basis for overturning the District
Court's denial of Melo's suppression motion.
Melo next challenges the District Court's decisions to
admit into evidence certain statements that Rafael made to
undercover agents before the November 10, 2015, trip to the Azores
and to admit records of Melo's phone contacts with Rafael and
Freitas from late March to December of 2015. Melo presses the
first part of his challenge under Federal Rule of Evidence
801(d)(2)(E),1 which provides that a statement is not hearsay when
it "is offered against an opposing party and . . . was made by the
party's coconspirator during and in furtherance of the
conspiracy." Melo brings the second part of his challenge under
Federal Rules of Evidence 403 and 404(b).
We start by considering his challenge to the admission
of Rafael's statements. We then turn to his challenge to the
admission of the phone records.
1
In its motion in limine, the government sought to admit
Rafael's statements that he: (1) "[h]ad off-the-book cash
transactions that were not reported to the IRS"; (2) relied on
Freitas to help him smuggle cash through the airport and that he
was friendly with Melo; and (3) "[o]n November 10, 2015, was caught
with cash he had to declare, but fortunately 'passed it to a lot
of people that were there with' him."
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A.
Before the start of Melo's trial, the government filed
a motion in limine to admit certain statements that Rafael made to
federal agents both before and after the November 10, 2015, trip
to the Azores, pursuant to Rule 801(d)(2)(E). For a statement to
come into evidence under that rule, "[t]he proponent . . . must
prove, by a preponderance of the evidence, that the declarant and
the defendant were members of a conspiracy when the statement was
made, and that the statement was made in furtherance of the
conspiracy." United States v. Ford, 839 F.3d 94, 105 (1st Cir.
2016) (quoting United States v. Ciresi, 697 F.3d 19, 25 (1st Cir.
2012)). "A district court's determination 'as to whether this
burden has been met is known in this circuit as a Petrozziello
ruling,' after our holding in United States v. Petrozziello, 548
F.2d 20 (1st Cir. 1977)." Id. at 105-06 (quoting Ciresi, 697 F.3d
at 25). However, "[a] court may provisionally admit a statement
under Rule 801(d)(2)(E) and defer its final Petrozziello ruling
until the close of evidence." Id. at 106 (quoting United States
v. Paz-Alvarez, 799 F.3d 12, 29 (1st Cir. 2015)).
Though Melo opposed the motion, the District Court
conditionally admitted Rafael's pre-trip statements, assuming the
government could make a satisfactory showing that Rafael and Melo
were members of the conspiracy at the time of Rafael's statements
and that the statements were made in furtherance of the conspiracy.
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The District Court, however, excluded Rafael's post-trip
statements from evidence.
At trial, Melo's counsel did not object to the
conditional introduction of Rafael's pre-trip statements. And, at
the end of the government's case-in-chief, the District Court found
that the government had made the necessary showings under Rule
801(d)(2)(E) for the pre-trip statements to be admitted into
evidence. But, rather than object at that point, Melo chose to
renew his objection to the admission of Rafael's pre-trip
statements at the end of the trial, which the District Court once
again denied.
To preserve a challenge to a district court's
Petrozziello ruling, such that we review its findings for clear
error rather than plain error, see id., the defendant must "object
on hearsay grounds when his or her coconspirator's statement is
provisionally admitted and must renew the objection at the close
of evidence," Ciresi, 697 F.3d at 26. But here, Melo opposed the
government's motion in limine before trial and objected to the
statements' admission only at the close of evidence. Moreover,
Melo stated that he had "no objection" when the District Court
conditionally admitted the statements during the actual trial. By
failing to object to the conditional admission of Rafael's pre-trip
statements at that time, Melo failed to preserve his challenge.
We thus review his challenge to the District Court's Petrozziello
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ruling only for plain error. See United States v. Laureano-Perez,
797 F.3d 45, 65 (1st Cir. 2015).
Melo argues that the District Court erred in admitting
Rafael's pre-trip statements because they were made "prior to
Melo's alleged involvement in the conspiracy." In fact, Melo
contends, Rafael told the undercover investigators before the
November trip that Melo did not carry cash for him on flights.
But, "whether [the defendant] was a coconspirator at the
time the statements were made is irrelevant -- we have held that
an individual who joins a conspiracy 'at a later date, . . .
effectively adopt[s] coconspirator declarations previously made.'"
United States v. Flemmi, 402 F.3d 79, 94 (1st Cir. 2005) (second
alteration in original) (quoting United States v. Saccoccia, 58
F.3d 754, 778 (1st Cir. 1995)). Melo concedes as much, but
responds that his case is distinguishable because "the
coconspirator has disavowed [the] defendant's participation in the
conspiracy at the time the coconspirator uttered the statements."
Melo fails, however, to show how it is clear or
obvious -- or even right -- that this distinction has force and
thus that he can satisfy the plain error standard. See United
States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (describing
United States v. Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir.
2007), as "holding that plain error cannot be found in case law
absent clear and binding precedent."). That being so, we reject
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Melo's challenge to the introduction of Rafael's pre-trip
statements.
B.
That brings us to the District Court's decision to admit
certain of Melo's phone records, which the District Court admitted
into evidence on the first day of trial. Those records spanned a
period that ran from late March of 2015 to December of that same
year and demonstrated contacts between Melo's phone and phones
associated with, respectively, Rafael and Freitas.
Melo objected to the admission of the records under
Federal Rule of Evidence 403 on the ground that many of the
contacts between himself and Rafael or Freitas reflected in those
records predated the existence of the alleged conspiracy, which
the indictment alleged began in October of 2015. Melo emphasizes
in pressing this argument on appeal that there is nothing
inherently criminal about the placement of phone calls between
acquaintances. In consequence, he contends, the probative value
of the records of such contacts is slight at best.
The District Court overruled Melo's objection and noted
that any concerns about the records' weight or credibility could
be handled through cross-examination. The parties agree that
Melo's challenge to the admission of his phone records is preserved
and that we review the District Court's decision to admit the
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records for abuse of discretion. See United States v. Bradshaw,
281 F.3d 278, 284 (1st Cir. 2002).
We see none here, as we agree with the District Court
that Melo's phone records for the period from March to December of
2015 were relevant and not so prejudicial as to substantially
outweigh their probative value. After all, the fact that there
were contacts between the phones of Melo, Rafael, and Freitas shows
that these men were familiar with one another and communicated
semi-regularly. Moreover, our review of the phone records shows
that the average number of contacts per month between Melo's phone
and those of his alleged coconspirators greatly increased after
the commencement of the alleged conspiracy in October of 2015, a
fact that would only be apparent to the jury if it had before it
phone records that covered a period of time that predated the
alleged conspiracy. Given that the records at issue showed at
most that there were calls placed between the phones prior to the
conspiracy, as the record did not reveal the content of any calls
or other communications, it is hard to see how the records were
prejudicial to Melo in such a way that merits exclusion under Rule
403.2
2
We also note that Melo's argument necessarily concedes that
all of the phone contacts recorded after Melo allegedly joined the
conspiracy in October of 2015 were properly admitted. As such,
the only records that could be considered potentially prejudicial
are those covering March to September of 2015.
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In any event, even if we were to assume there was a Rule
403 error, it would still be reviewed for harmlessness. See United
States v. Kilmartin, 944 F.3d 315, 338 (1st Cir. 2019) (noting
that error under Rule 403 only requires a new trial when "it is
'highly probable' that the error did not contribute to the
verdict." (quoting United States v. Fulmer, 108 F.3d 1486, 1498
(1st Cir. 1997))). And, we do not see, nor does Melo explain to
us, how the admission of evidence that shows fewer average phone
contacts between Melo and Rafael or Freitas in the period that
Melo contends predates the start of the alleged conspiracy than
occurred during the period that followed its start could, in light
of all the evidence, plausibly have been a difference maker in
this case.
Melo argues in the alternative that the phone records
were evidence of prior bad acts and thus that they were not
admissible under Federal Rule of Evidence 404(b).3 But, we do not
3 Rule 404(b) states that evidence of "crimes, wrongs, or
other acts" are to be treated as follows:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime,
wrong, or other act is not admissible to
prove a person's character in order to
show that on a particular occasion the
person acted in accordance with the
character.
(2) Permitted Uses; Notice in a Criminal
Case. This evidence may be admissible for
another purpose, such as proving motive,
opportunity, intent, preparation, plan,
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see how these phone records, which Melo himself asserts are
"innocuous" and which do not reveal the content of any call, can
constitute evidence of prior bad acts. It is a far cry from the
testimony that Melo points us to in United States v.
Martínez-Marcado, 919 F.3d 91, 101 (1st Cir. 2019), in which we
found that testimony about prior planned, but uncompleted,
conspiracies was not admissible under Rule 404(b). The testimony
in that case related to actual planned conspiracies to rob people's
homes that the defendant had led, while the evidence here does
nothing more than establish that there was contact by phone between
alleged coconspirators. Therefore, we reject Melo's Rule 404(b)
challenge as well.
Melo's next set of challenges is to the District Court's
refusal to issue certain jury instructions that he contends that
he requested. We do not find this set of challenges to have merit.
knowledge, identity, absence of mistake,
or lack of accident. On request by a
defendant in a criminal case, the
prosecutor must:
(A) provide reasonable notice of the
general nature of any such evidence
that the prosecutor intends to offer
at trial; and
(B) do so before trial--or during
trial if the court, for good cause,
excuses lack of pretrial notice.
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First, he argues that the District Court should have
given the jury an instruction -- pursuant to Commonwealth v.
DiGiambattista, 813 N.E.2d 516 (Mass. 2004) -- that would have
allowed it to draw an adverse inference against the government
from SAs Pauley and Ryan's failure to record their interview with
Melo. Melo made this request prior to the charge conference. The
District Court denied the request but did instruct the jury to
consider the circumstances surrounding Melo's statements as it
weighed the evidence.
Following the charge conference, however, Melo asked the
District Court to modify its proposed instruction so that the jury
would need to find that he made his statements to the agents
voluntarily and that, if the jury found the statements were made
involuntarily, the statements must be disregarded. The District
Court also denied this request. In doing so, the District Court
suggested that the voluntariness of Melo's statements was an issue
for it, and not the jury, to decide.
The District Court then charged the jury. At that point,
Melo's counsel told the District Court that he was "renew[ing]"
his objections to the District Court's refusal to issue his
requested instructions.
For preserved jury instruction challenges, "this court
reviews de novo 'whether the instructions conveyed the essence of
the applicable law' and reviews for abuse of discretion 'whether
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the court's choice of language was unfairly prejudicial.'" United
States v. Silva, 742 F.3d 1, 10 (1st Cir. 2014) (quoting United
States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)). However, the
government contends that Melo failed to preserve his challenge to
the District Court's failure to issue a DiGiambattista or
voluntariness instruction, as the government contends that Melo's
objection after the charge was given was not sufficient to meet
the demands of Federal Rule of Criminal Procedure 30(d). See
United States v. Roberson, 459 F.3d 39, 45 (1st Cir. 2006) ("To
preserve an objection to a jury instruction under Fed. R. Crim. P.
30(d), a litigant must lodge a specific objection and state the
grounds for the objection after the court has charged the jury and
before the jury begins deliberations. Objections registered
during pre-charge hearings are insufficient to preserve the
issue." (internal citation omitted)).
We need not resolve this dispute over the standard of
review here, however. Melo's DiGiambattista challenge runs
squarely into our precedent that "there is no federal
constitutional right to have one's custodial interrogation
recorded," United States v. Meadows, 571 F.3d 131, 147 (1st Cir.
2009), and that declines to require the use of such instructions
under our supervisory power, see id.
Melo argues in response that Meadows does not govern
here because, unlike in that case, the District Court refused to
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instruct the jury to determine whether Melo voluntarily made his
statements to the agents. The fact that we previously declined to
require the use of DiGiambattista instructions in Meadows had
little to do, however, with the fact that the jury in that case
was instructed to consider voluntariness. We referenced that
separate instruction merely to explain why there was, in any event,
little prejudice to the defendant caused by the lack of the
requested instruction. See id.
Melo also challenges the District Court's refusal to
instruct the jury that it had the power to determine whether Melo's
statements were voluntarily made. We have made it clear, however,
that the question of whether a defendant voluntarily made a
statement to police is for the district court -- and not the
jury -- to decide. See United States v. Feliz, 794 F.3d 123, 130
(1st Cir. 2015). So, this challenge also fails.
We next must address Melo's challenges to the District
Court's decisions to limit his ability to argue that he was the
only person charged for the events that occurred on November 10,
2015, and to not issue a curative instruction after a witness had
mentioned Rafael's and Freitas' convictions. We are not persuaded
by these arguments, either.
The following facts are relevant to our assessment of
these challenges. Melo requested, via a motion in limine, that
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the District Court prohibit the government from introducing any
evidence regarding Rafael's and Freitas' convictions arising from
the cash-smuggling conspiracy. The District Court denied the
motion as moot after the government represented that it did not
intend to admit such evidence during trial.
Then, during opening arguments, Melo's counsel told the
jury that Melo was the only person being prosecuted for what
occurred on November 10, 2015. The government did not immediately
object, but it later brought the issue to the attention of the
District Court and objected that Melo's statement mischaracterized
the nature and outcome of the investigation. In response, the
District Court apparently prohibited Melo from making that
argument.
On the fourth day of trial, Melo's counsel called his
previous supervisor, Bristol County Sheriff Thomas Hodgson, as a
witness. Melo's counsel asked Hodgson during his testimony whether
Hodgson continued to use Melo as a driver even after learning of
the investigation into Melo's alleged role in Rafael's scheme.
Hodgson responded, "I don’t remember when Carlos Rafael was
convicted, Antonio Freitas was convicted."
After Hodgson left the stand, Melo requested that the
District Court issue a curative instruction that Rafael's and
Freitas' "convictions were not related to this case," to which the
government objected. When the District Court said that it was
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inclined to do no more than offer an instruction that Melo was the
only person on trial, Melo indicated that he was no longer pressing
for his more specific curative instruction.
In a motion for reconsideration filed later that day,
however, Melo asked the District Court to reverse both its decision
to prohibit him from arguing that Melo was the only person being
prosecuted for the events on November 10, 2015, and its decision
to refuse to give the specific curative instruction that he had
requested. The District Court denied the motion, stating both
that it would be misleading to allow Melo to argue that he was the
only person being prosecuted for the events of November 10, 2015,
when all three men were being investigated at the same time, and
that the curative instruction Melo requested would unnecessarily
attract more attention to the problematic testimony.
A.
We consider first Melo's challenge to the District
Court's decision to prohibit him from arguing that he was the only
one arrested in connection with the events of November 10, 2015.
Because Melo made this argument in his motion to reconsider, we
review this challenge for abuse of discretion. See United States
v. Allen, 573 F.3d 42, 53 (1st Cir. 2009).4
4 To the extent Melo's original objection to the District
Court's decision to prohibit his argument is preserved, we would
still review that decision for abuse of discretion, see United
- 29 -
As best we can tell, Melo's argument is that Rafael's
and Freitas' indictments did not encompass the events of November
10, 2015. From that premise, Melo contends that he should have
been allowed to argue that he alone was prosecuted over this
particular trip to the Azores. But, we agree with the District
Court that it would have been misleading to allow such an argument.
Allowing Melo to do so would have given the jury the false
impression that the government was ignoring other culpable actors
in its focus to prosecute Melo. The reality, of course, was that
all of the major actors in the conspiracy were investigated and
prosecuted. As such, we do not find that the District Court abused
its discretion in preventing Melo from making this argument. See
United States v. Callipari, 368 F.3d 22, 37 (1st Cir. 2004) (noting
that the district court "was well within its discretion" to limit
the defendant's ability to make an argument that "would have
misdirected the jury"), judgment vacated on other grounds, 543
U.S. 1098 (2005).
B.
Melo's challenge to the denial of his curative
instruction fares no better. This Court reviews preserved
challenges to a district court's refusal to offer a curative
instruction for abuse of discretion. See United States v.
States v. Burns, 298 F.3d 523, 543 (6th Cir. 2002), and the outcome
would remain the same.
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Belanger, 890 F.3d 13, 32 (1st Cir. 2018). However, Melo waived
his original request for a curative instruction when he told the
District Court that he was no longer pressing that point, given
the alternative instruction that the District Court adopted. See
United States v. Orsini, 907 F.3d 115, 120 (1st Cir. 2018) ("'A
party who identifies an issue, and then explicitly withdraws it,
has waived the issue' and cannot resurrect it on appeal." (quoting
United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002))).
As such, his original challenge is waived.
To the extent Melo appeals the denial of his motion for
reconsideration on this point, we review the District Court's
denial of that motion for abuse of discretion. See Allen, 573
F.3d at 53. But, in his briefing to us, Melo fails to explain how
the reconsideration standard applies to his claim or to argue how
he could meet it. See id. (noting that "motions for
reconsideration are appropriate only in a limited number of
circumstances: if the moving party presents newly discovered
evidence, if there has been an intervening change in the law, or
if the movant can demonstrate that the original decision was based
on a manifest error of law or was clearly unjust"). As a result,
his arguments are waived. See United States v. Brown, 621 F.3d
48, 53 n.4 (1st Cir. 2010).
Even if we were to reach the merits of his challenge,
moreover, we would reject it. This Court generally recognizes
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that trial courts are in the best position to determine if a
curative instruction would do more harm than good, and Melo points
us to no authority that indicates that, in these circumstances, we
should decline to defer to the District Court. See United States
v. Rivera-Rodríguez, 761 F.3d 105, 128 (1st Cir. 2014) (finding no
abuse of discretion where a district court declined to give a
curative instruction after a witness made an improper "stray
remark" about the defendant's criminal records).
Melo's final pair of related challenges is to the
District Court's decision to issue a willful blindness instruction
to the jury in relation to Melo's involvement with the cash
envelopes and to the District Court's refusal to issue an
instruction defining reasonable doubt. Again, we find no merit to
the challenges.
The relevant facts are these. At trial, Melo opposed
the issuance of any willful blindness instruction. However, he
did request that, if the District Court decided to issue the
willful blindness instruction, the District Court modify the
instruction so as to inform the jury that "mere negligence,
mistake, or recklessness in failing to learn the fact is not
sufficient" to constitute willful blindness and that it issue an
instruction defining the meaning of reasonable doubt.
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The District Court agreed to Melo's requested willful
blindness instruction modification but refused to instruct the
jury as to the meaning of reasonable doubt. After the District
Court charged the jury, Melo's counsel stated no more than that he
renewed his objections to each of the District Court's instructions
on these points.
A.
We first consider the challenge to the willful blindness
instruction. "A willful blindness instruction is justified if
'(1) a defendant claims a lack of knowledge, (2) the facts suggest
a conscious course of deliberate ignorance, and (3) the
instruction, taken as a whole, cannot be misunderstood as mandating
an inference of knowledge.'" United States v. Valbrun, 877 F.3d
440, 445 (1st Cir. 2017) (quoting United States v. Azubike, 564
F.3d 59, 66 (1st Cir. 2009)).
Melo argues that these factors were not met in his case.
But, even if we assume that Melo's challenge to the instruction is
preserved, notwithstanding the requirements for preserving it set
forth in Federal Rule of Criminal Procedure 30, see United States
v. O'Connor, 28 F.3d 218, 220-21 (1st Cir. 1994), it lacks merit.
As to the first element that bears on the propriety of
giving the instruction, Melo himself claims that he lacked
knowledge of what was in the envelopes Rafael handed to him.
Moreover, the facts suggest that the second element was met as
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well, as they show that if Melo did not know what was in the
envelopes, he took pains not to apprise himself of the envelopes'
contents. Being asked to carry envelopes for another person at
the airport, and then being told to pick up the envelopes in a
bathroom to avoid detection, reasonably qualify as "red flags."
As to the third element, the modified instruction that Melo
obtained made it clear to the jury that anything less than
knowledge or purpose was not sufficient for finding willful
blindness.
B.
There remains, then, only Melo's challenge to the denial
of his reasonable doubt jury instruction request. Melo asserts
that "a case where the government relied so heavily on the concept
of willful blindness required an explanation of reasonable doubt
to counteract the misleading nature of the charge and the evidence.
Due process requires no less." But, he provides no support for
this proposition, and, in fact, our precedent is clearly to the
contrary. See United States v. Jones, 674 F.3d 88, 94 (1st Cir.
2012) (holding that a trial judge "was not required to define
reasonable doubt" where the defendant objected that the judge's
instructions to the jury were ambiguous). Thus, this challenge,
too, fails.
We affirm the convictions below in all respects.
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