United States Court of Appeals For the First Circuit
No. 17-2136
UNITED STATES OF AMERICA,
Appellee,
v.
DANNY VELOZ,
a/k/a MAESTRO, a/k/a JOIL RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Barron, Selya, and Boudin, Circuit Judges.
Mark W. Shea, with whom Shea & LaRocque, LLP 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.
January 24, 2020 BARRON, Circuit Judge. Danny Veloz challenges on
various grounds his 2017 conviction for conspiracy to commit
kidnapping in violation of 18 U.S.C. § 1201(c), for which he
received a prison sentence of life. Finding no merit to his
challenges, we affirm.
Veloz's conviction stems from his alleged role as the
mastermind of a Massachusetts-based scheme to kidnap drug dealers
and hold them for ransom. On July 23, 2012, a victim of the
scheme, Manuel Amparo, alerted law enforcement that he had just
escaped from having been kidnapped. Three men were initially
arrested in connection with that crime, one of whom, Henry
Maldonado, began cooperating with the authorities.
Maldonado informed the authorities that Veloz was the
head of the kidnapping crew. Maldonado told them that Veloz would
attach GPS devices to the cars of potential kidnapping victims in
order to track their movements. Once Veloz learned a victim's
typical driving routine, Maldonado also recounted, Veloz would
instruct his crew to abduct the victim and hold the victim for
ransom.
Further investigation revealed that Amparo had a GPS
device unknowingly attached to his car. The Federal Bureau of
Investigation ("FBI") then secured a warrant to search Veloz's
residence from a United States magistrate judge. The search turned
- 2 - up, among other things, computers and cell phones related to the
scheme.
The operative indictment was handed up on September 27,
2012, by a grand jury in the District of Massachusetts. The
indictment charged Veloz and six co-defendants with conspiracy to
commit kidnapping in violation of 18 U.S.C. § 1201(c). Veloz's
co-defendants each pleaded guilty. Veloz chose to proceed to
trial, which commenced on August 7, 2017. The jury returned a
guilty verdict against Veloz on August 21, 2017, and the District
Court sentenced Veloz to life in prison on November 17, 2017. That
same day, Veloz timely filed a notice of appeal.
Veloz first challenges the District Court's denial of
his motion to suppress the evidence that law enforcement
authorities seized from his apartment. Veloz argues that the
District Court erred in denying this motion because the application
for the warrant that led to the seizure failed to establish the
requisite probable cause.
When reviewing "the denial of a suppression motion, we
assess the district court's factfinding for clear error, and review
legal questions (such as probable cause . . . ) de novo." United
States v. Ackies, 918 F.3d 190, 197 (1st Cir.), cert. denied, No.
19-6602, 2019 WL 6833480 (Dec. 16, 2019). We employ a
"totality-of-the-circumstances analysis" to see if the government
- 3 - established "a fair probability that contraband or evidence of a
crime will be found in a particular place," Illinois v. Gates, 462
U.S. 213, 238 (1983), and "accord 'considerable deference to
reasonable inferences [that] the [issuing judge] may have drawn
from the attested facts,'" United States v. Tiem Trinh, 665 F.3d
1, 10 (1st Cir. 2011) (alteration in original) (quoting United
States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996)).
Veloz's first ground for challenging the denial of his
motion to suppress focuses on the affidavit that accompanied the
application that FBI Special Agent John Orlando ("SA Orlando")
submitted for the search warrant. The affidavit relied largely on
information from a confidential informant. Veloz contends that,
because the affidavit did not describe the informant as having
provided credible information to law enforcement in the past, the
warrant was not supported by probable cause. We disagree.
"[A]n informant's tip can establish probable cause even
though the affidavit does not contain information about the
informant's past reliability," United States v. Greenburg, 410
F.3d 63, 67 (1st Cir. 2005), as a "probable cause finding may be
based on an informant's tip so long as the probability of a lying
or inaccurate informer has been sufficiently reduced," id. at 69.
"We apply a 'nonexhaustive list of factors' to examine the
affidavit's probable cause showing" when it is based on a tip.
- 4 - United States v. Gifford, 727 F.3d 92, 99 (1st Cir. 2013) (quoting
Tiem Trinh, 665 F.3d at 10). These factors include:
(1) whether the affidavit establishes the probable veracity and basis of knowledge of persons supplying hearsay information; (2) whether an informant's statements reflect first-hand knowledge; (3) whether some or all of the informant's factual statements were corroborated wherever reasonable or practicable (e.g., through police surveillance); and (4) whether a law enforcement affiant assessed, from his professional standpoint, experience, and expertise, the probable significance of the informant's provided information.
Id.
In this case, the first two factors that we have set
forth above point in favor of finding the tip reliable. SA
Orlando's affidavit represented that the confidential informant
had provided a detailed description of the illegal scheme's
operations and Veloz's role in them. His affidavit also made clear
that the confidential informant's description of those operations
was based, in part, on his having been inside Veloz's residence.
The third factor further indicates that the tip in this
case was reliable because SA Orlando's affidavit identified a
number of key respects in which the informant's tip had been
corroborated. For example, his affidavit stated that the apartment
building that the informant had identified as Veloz's place of
residence had a mailbox in it with Veloz's name on it; that law
- 5 - enforcement had observed a car parked in front of that
residence -- a brown Cadillac -- that matched the description that
the informant had previously given of Veloz's vehicle; and that
FBI agents had observed a red van that belonged to one of Veloz's
co-conspirators parked outside of that same apartment building.
Moreover, an attachment to the warrant application stated that, in
accord with the confidential informant's claim that Veloz had used
GPS devices to monitor his victims, the investigation into the
July 23, 2012, kidnapping revealed that a GPS device had been
attached to the victim's car.
The fourth factor, which relates to the experience of
the law enforcement officer seeking the warrant, reinforces the
reliability of the tip here. SA Orlando represented in his
affidavit that the information that he had obtained from the
confidential informant accorded with what he had learned from
investigating kidnappings in the nearby area over the course of
the previous year. See Zayas-Diaz, 95 F.3d at 111 (explaining
that a search warrant application is strengthened when "a
law-enforcement affiant included a professional assessment of the
probable significance of the facts related by the informant, based
on experience or expertise").
Finally, in this case, "the [informant] was known to the
police and could be held responsible if his assertions proved
inaccurate or false." United States v. Barnard, 299 F.3d 90, 93
- 6 - (1st Cir. 2002) (citing Florida v. J.L., 529 U.S. 266, 270 (2000)).
Thus, this fact provides further support for a finding that the
confidential informant's tip was reliable. Id.
Veloz has a fallback argument in challenging the
District Court's denial of his motion to suppress. He contends
that the District Court erred by mistakenly finding that SA
Orlando's affidavit stated that the informant "admitted to his
role in the kidnapping." But, because the warrant application
establishes the reliability of the confidential informant's tip
whether or not the informant was himself involved in the kidnapping
scheme, we may affirm the District Court's probable cause ruling
on that basis. See Ackies, 918 F.3d at 197.1
Veloz's next set of challenges also relies on what he
claims are deficiencies in the search warrant application. Here,
however, Veloz does not contend that the deficiencies required the
1 In light of our rejection of Veloz's challenge to the search of his apartment, his challenge to the subsequent searches of his electronic devices, made pursuant to a new warrant that relied in part on information gleaned from the apartment search, lacks merit. Veloz does separately argue that this evidence should be suppressed because there was a "permanent and endless government search" for over eighteen months. Veloz fails to explain, however, why the delay in retuning the search warrant requires suppression of the evidence. This argument is thus waived for lack of adequate development. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[W]e see no reason to abandon the settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").
- 7 - suppression of the evidence at issue. Rather, he contends that
due to what he describes as "omissions and misstatement[s] in the
search warrant affidavit," the District Court erred in refusing
his pretrial motion to hold a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978). Thus, he contends, the conviction
must be vacated for this reason.
A Franks hearing affords a defendant an opportunity to
show, "by a preponderance of the evidence," that the warrant
application "contains false statements or omissions, made
intentionally or with reckless disregard for the truth, and that
a finding of probable cause would not have been made without those
false statements or omissions." United States v. Arias, 848 F.3d
504, 510-11 (1st Cir. 2017). To be entitled to a Franks hearing,
the defendant must first make:
a "substantial preliminary showing" of the same two requirements that he must meet at the hearing — that "a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth" and that the false statement or omission was "necessary to the finding of probable cause."
Id. at 511 (quoting United States v. McLellan, 792 F.3d 200, 208
(1st Cir. 2015)).
Veloz contends that the District Court erred in denying
his motion for a Franks hearing because he had made the required
substantial preliminary showing that SA Orlando knew and omitted
- 8 - key facts from his affidavit about Maldonado's criminal history,
previous addiction to heroin, bipolar disorder diagnosis, and some
false statements that Maldonado made regarding the kidnappings.
Because this challenge is preserved, we review the District Court's
factual determinations in denying a motion for a Franks hearing
for clear error, and its determination of whether the defendant
has made a substantial preliminary showing that the omitted
information was material to the finding of probable cause de novo,
see id.
Here, because the information in the warrant application
that supported a finding that the confidential informant's tip was
reliable was so substantial, the omitted information that Veloz
points to was not material to "the probable cause calculus."
United States v. Stewart, 337 F.3d 103, 106 (1st Cir. 2003). That
is especially so because "magistrate judges . . . often know, even
without an explicit discussion of criminal history, that many
confidential informants 'suffer from generally unsavory character'
and may only be assisting police to avoid prosecution for their
own crimes." United States v. Avery, 295 F.3d 1158, 1168 (10th
Cir. 2002) (quoting United States v. Novaton, 271 F.3d 968, 985
(11th Cir. 2001)).
We also are unpersuaded by Veloz's separate challenge to
the District Court's denial of a Franks hearing based on what he
contends was SA Orlando's false statement in his affidavit that
- 9 - the confidential informant "picked Danny Veloz out of a photo
binder on July 24, 2012." According to Veloz, his picture was not
included in a photo array until August 2, 2012, and Veloz contends
that the statement about when his photo was picked out of the
binder was a "critical fact relied on by the magistrate judge in
finding probable cause . . . as it was a critical detail offered
to confirm the informant's knowledge of Veloz[.]"
Veloz first made the argument that he was entitled to a
Franks hearing, however, in a motion for reconsideration. Thus,
Veloz preserved only his challenge to the denial of that motion.
Our review of the denial of such a motion is only for abuse of
discretion, see United States v. Fanfan, 558 F.3d 105, 106-07 (1st
Cir. 2009), and Veloz makes no argument that the District Court
abused its discretion in denying that motion. Nor do we see how
he could, given that he was not presenting new evidence in that
motion, see United States v. Allen, 573 F.3d 42, 53 (1st Cir.
2009), as, prior to Veloz's motion for reconsideration on November
3, 2016, the District Court had already laid out the accurate
version of events in its June 4, 2015, decision to deny a Franks
hearing.
Insofar as Veloz means to press this argument as a basis
for challenging the District Court's original decision to deny his
motion for a Franks hearing, we may only review it for plain error.
See United States v. Tanco-Pizarro, 892 F.3d 472, 479 (1st Cir.)
- 10 - ("[A]rguments unveiled for the first time in a reconsideration
motion are not preserved for appeal."), cert. denied, 139 S. Ct.
354 (2018). But, given the other information in the warrant
application, this one representation, even if Veloz could show
that SA Orlando knew that it was false, is not of a kind that could
make plain that Veloz had made the requisite preliminary showing
that the statement was material to a finding of probable cause.
We come, then, to Veloz's contention that the District
Court erred in denying his motion for a Franks hearing because the
affidavit from SA Orlando failed to reveal that the confidential
informant to whom it referred was, in fact, Maldonado. As Veloz
puts it, the application failed to "identify Maldonado . . . ,
instead referring to him as 'CI-1,' and describ[ing] him as a
'confidential informant working with the FBI's North Shore Gang
Task Force.'"
The government does not dispute that Maldonado was the
confidential informant or that the warrant application failed to
disclose that fact. We do not see, though, how this omission could
be thought to undermine the basis for finding probable cause. As
we have explained, the warrant application provides ample support
for finding the informant's tip to be reliable whether or not the
informant was involved in the conspiracy. In fact, the inclusion
of the fact that Maldonado was the informant would appear to
provide additional support for finding the tip reliable, given
- 11 - that it would provide a basis for finding that the informant was
relaying firsthand knowledge.
In any event, our review of this contention is only for
plain error, because Veloz did not press this ground for requesting
a Franks hearing below. Yet, Veloz "fails to even attempt to
explain how the plain error standard has been satisfied." United
States v. Severino-Pacheco, 911 F.3d 14, 20 (1st Cir. 2018); see
also United States v. Pabon, 819 F.3d 26, 33 (1st Cir. 2016)
("[Appellant] has waived these challenges because he has not even
attempted to meet his four-part burden for forfeited claims.").
The next pretrial ruling that Veloz challenges relates
to the District Court's grant of the government's motion to strike
Special Agent Jeffrey Rolands ("SA Rolands") from his witness list.
In his initial opposition to the government's motion, Veloz argued
to the District Court that he did not need to provide any
justification for including the persons on his witness list that
he did, and that, in the alternative, every witness on his list
should be allowed to appear because they could "offer[] evidence
regarding . . . the flaws in the investigation and the deficiencies
in the securing of evidence." The District Court nevertheless
granted the government's motion to strike, stating that it was
necessary to "protect the jury from testimony that is irrelevant,
cumulative, or confusing" and because SA Rolands had "been
- 12 - transferred to Washington DC" In a motion for reconsideration,
Veloz contended that the decision to strike SA Rolands interfered
with his ability to present his defense, as he intended to call SA
Rolands in order to cast doubt on the integrity of the government's
investigation.
The parties dispute whether Veloz adequately preserved
his challenge to the District Court's initial decision to grant
the government's motion. But, we need not resolve that dispute
because Veloz's challenge, even if preserved as to the District
Court's initial decision, still fails.
Veloz bases his challenge on his federal constitutional
right, as a matter of procedural due process, to call witnesses in
his defense. See Washington v. Texas, 388 U.S. 14, 19 (1967). To
show that this right has been violated, however, Veloz must
demonstrate that the District Court abused its discretion in
excluding SA Rolands from his list of witnesses. See United States
v. Occhiuto, 784 F.3d 862, 867 (1st Cir. 2015) (reviewing the
defendant's constitutional challenge regarding the denial of his
request to call a particular witness for "abuse of discretion").
Yet, under Washington, it is not an abuse of discretion for a
district court to bar a witness -- as the District Court barred
the witness here -- from testifying due to the cumulative nature
of the testimony that he would provide. See United States v.
Scheffer, 523 U.S. 303, 308 (1998) ("A defendant's right to present
- 13 - relevant evidence is not unlimited, but rather is subject to
reasonable restrictions."); United States v. Sabean, 885 F.3d 27,
40 (1st Cir. 2018) ("Trial courts enjoy 'considerable latitude' to
exclude evidence that is 'admittedly relevant' but also
'cumulative.'" (quoting Hamling v. United States, 418 U.S. 87, 127
(1974))). As Veloz does not explain what SA Rolands' testimony
would have provided that would render the District Court's
determination that it was cumulative of other evidence in the
record an abuse of discretion, we reject this contention.
We turn, then, to Veloz's contention that the District
Court reversibly erred by admitting into evidence a transcript of
a recording of statements by Gadiel Romero, one of Veloz's
co-conspirators, which purported to confirm Veloz's role in the
kidnapping scheme. The statements set forth in the transcript
were made during a conversation that Romero had with Maldonado
while both men were in prison and that Maldonado had secretly
recorded with equipment the government had provided to him.
On September 29, 2016, the government filed a motion in
limine to admit, pursuant to Federal Rule of Evidence 804(b)(3),
a transcript of the statements that Romero made during this
recorded conversation, notwithstanding that they otherwise would
have been inadmissible as hearsay. Federal Rule of Evidence
804(b)(3) allows for the admission of hearsay statements that:
- 14 - (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
The District Court granted the government's motion on
October 28, 2016. Veloz then moved for the District Court to
reconsider that ruling. In response, the government offered to
admit a revised transcript that contained only certain excerpts
from the conversation between Romero and Maldonado. Veloz objected
to the admission into evidence of the revised transcript. The
District Court overruled the objection. Veloz now argues on appeal
that the District Court erred in permitting the revised transcript
to be admitted into evidence.2
2 "Typically, litigants offer recordings as evidence and use transcripts as interpretive aids for the jurors' benefit. The recordings control in the event that they differ from the proffered transcripts." United States v. Kifwa, 868 F.3d 55, 60 (1st Cir. 2017) (internal citation omitted). However, when confronted with a conversation in a foreign language, such as the one between Romero and Maldonado, "the parties may agree to forgo having jurors listen to foreign-language recordings that they do not understand," and instead admit into evidence "transcripts containing translations of such recordings . . . as long as they are reliable and properly authenticated." Id. Neither Veloz nor
- 15 - Veloz first contends that, wholly apart from whether the
statements at issue are admissible via the revised transcript
pursuant to Rule 804(b)(3), their admission violated the
Confrontation Clause of the Sixth Amendment under Bruton v. United
States, 391 U.S. 123 (1968) and Lilly v. Virginia, 527 U.S. 116,
139 (1999). Our review of a preserved Confrontation Clause
challenge is de novo. See United States v. Phoeun Lang, 672 F.3d
17, 21 (1st Cir. 2012).
In considering Confrontation Clause challenges, "[t]he
threshold question in every case is whether the challenged
statement is testimonial. If it is not, the Confrontation Clause
'has no application.'" United States v. Figueroa-Cartagena, 612
F.3d 69, 85 (1st Cir. 2010) (quoting Whorton v. Bockting, 549 U.S.
406, 420 (2007)). Because Romero's statements set forth in the
revised transcript were not testimonial, Veloz's Confrontation
Clause challenge necessarily founders -- even under the de novo
standard of review -- on that threshold question. See Davis v.
Washington, 547 U.S. 813, 825 (2006) (noting that "statements made
unwittingly to a Government informant" are "clearly
nontestimonial" (citing Bourjaily v. United States, 483 U.S. 171,
181-84 (1987))).
the government appears to have objected to the use of the transcript.
- 16 - Veloz next contends that, contrary to the District
Court's ruling, the exception to the hearsay bar that is set forth
in Federal Rule of Evidence 804(b)(3) does not apply to the
statements at issue. To make that case, he asserts that some of
the statements that Romero made during the recorded conversation
were made to "minimize [Romero's] involvement in the conspiracy"
and thus were not made against his penal interest. Veloz also
points to certain other statements that Romero made during the
recorded conversation that he contends a jury could have
interpreted to be self-exculpatory, as the statements suggested
that Romero believed that "no one else placed him at the scene of
the kidnapping" and that "some of the co-defendants [did not] know
him."
We review preserved challenges to evidentiary rulings
under the Federal Rules of Evidence for abuse of discretion, see
Ackies, 918 F.3d at 205, and the government concedes that this
standard applies here, even though Veloz first objected to the
revised transcript's admission in a motion for reconsideration,
see Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008)
("Where a trial court chooses to overlook the belated nature of a
filing and adjudicate the tardy claim or defense on the merits,
that claim or defense may be deemed preserved for purposes of
appellate review."). Even under the abuse of discretion standard
of review, however, the challenge fails for a simple reason: the
- 17 - government did not include in the revised transcript of the
recording that was admitted into evidence the statements that Veloz
identifies as the ones that failed to fall within the Rule
804(b)(3) exception. See United States v. Barone, 114 F.3d 1284,
1295 (1st Cir. 1997) (noting that the Rule 804(b)(3) inquiry
narrowly focuses on whether a specific remark could be deemed
self-inculpatory, making exclusion only appropriate, "in light of
all the surrounding circumstances," for those particular
statements that are "collateral," "non-self-inculpatory
statements" (quoting Williamson v. United States, 512 U.S. 594,
600, 604 (1994))).
Relatedly, Veloz contends that the government failed to
demonstrate, as Federal Rule of Evidence 804(b)(3)(B) requires,
that there were "corroborating circumstances" with respect to the
statements from Romero that were included in the revised
transcript. For this exception to the bar on the admission of
hearsay to apply, however, there need only be "evidence that
clearly indicates that the statements are worthy of belief, based
upon the circumstances in which the statements were made." Id. at
1300. Thus, there is no merit to this challenge because Veloz
fails to explain why the statements made here, which were to a
"fellow inmate," are not of that sort, see United States v.
Pelletier, 666 F.3d 1, 8 (1st Cir. 2011).
- 18 - Finally, Veloz argues that the District Court erred in
failing to exercise its supervisory powers to prevent Romero's
statements from being admitted into evidence via the revised
transcript. He contends that the court order that allowed
Maldonado to use the government's equipment to record his
conversation with Romero permitted him to do so only if Maldonado
avoided raising the subject of the kidnapping conspiracy. Veloz
then contends that the transcript of the recorded conversation
reveals -- in his view, contrary to the dictates of the court
order -- that Maldonado brought up that topic and that Romero made
statements about Veloz's role in the conspiracy only at that point
in the conversation. Accordingly, he contends that the District
Court was required to exclude the statements at issue as a means
of enforcing the court order.
We review preserved challenges to the failure to
exercise supervisory powers for abuse of discretion. See United
States v. Black, 733 F.3d 294, 301 (9th Cir. 2013) ("We review for
abuse of discretion the district court's decision not to use its
supervisory powers to dismiss an indictment."). The draft
transcript of the conversation does show that Maldonado brought up
the kidnapping scheme to Romero. But, the court order that
permitted Maldonado to record his conversation with Romero merely
required the government to instruct Maldonado not to raise that
topic. Because Veloz does not dispute that the government did so
- 19 - instruct Maldonado, we see no basis for ruling that, to enforce
the government's compliance with the court order, the District
Court was obliged to exercise its supervisory powers to exclude
the transcript insofar as it contained the statements from Romero
that Veloz finds objectionable. See United States v. Jennings,
960 F.2d 1488, 1491 (9th Cir. 1992) ("Absent a violation of a
recognized right under the Constitution, a statute, or a procedural
rule, a district court is not entitled to exclude evidence as a
sanction against government practices disapproved of by the
court."); United States v. Osorio, 929 F.2d 753, 763 (1st Cir.
1991) ("Without a nexus between improper prosecutorial practice
and prejudice to the defendant, misconduct must be characterized
as harmless error, and thus beyond the scope of redress under
supervisory powers by dismissal or reversal.").
Independent of the challenges that he brings that focus
on the fact that the revised transcript included Romero's
statements, Veloz also contests the admission of the revised
transcript on the ground that it included a statement by Maldonado
that conveyed certain information that he had learned from
investigators. The contention seems to be that this statement
from Maldonado was hearsay and thus was inadmissible for that
reason. But, Maldonado's statement was admitted into evidence
solely to identify the statement to which Romero was responding in
making a statement of his own that the revised transcript included
- 20 - and not for its truth. Thus, the District Court did not err in
permitting the admission of that statement via the revised
transcript. See United States v. Walter, 434 F.3d 30, 34 (1st
Cir. 2006).3
We turn now to Veloz's contention that the District Court
reversibly erred at trial because it permitted the admission of
certain evidence and testimony that concerned U.S. Fleet
Tracking's GPS data. U.S. Fleet Tracking produces the GPS devices
that Veloz allegedly used to track his victims.
Veloz first argues that the District Court erred in
permitting this data to be admitted under the hearsay exception
for business records that is set forth in Federal Rule of Evidence
803(6). Rule 803(6) states that:
A record of an act, event, condition, opinion, or diagnosis [can be admitted into evidence] if: (A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
3 Maldonado's statement that was admitted into evidence reads as follows: 'Cause you, when they told me is that these n****s, right, they had them under surveillance already for a long time, that these n****s been doing burning and f***ing stabbing, and f***ing n****rs up for the longest time, right? You think Cano and Danny will say: "Yo, we are hot," you know what I mean?
- 21 - (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
Veloz trains his focus initially on the requirements
that are set forth in subsections (A)-(C). Veloz contends that,
because the GPS data that was admitted into evidence was prepared
in anticipation of litigation, these requirements were not met.
But, while the government's trial exhibit that set forth the GPS
data was so prepared, the government showed that U.S. Fleet
Tracking created and stored the GPS data itself contemporaneously
with Veloz's conduct and thus not in preparation for the
litigation. We thus reject Veloz's first ground for claiming that
the business records exception did not encompass the data in
question.
Veloz next focuses on subsection (D). He argues that
the government failed to provide a "qualified witness" to testify
that the relevant conditions had been met for admitting the GPS
data under the business records exception. Veloz focuses solely
- 22 - on the testimony of Task Force Officer Jason Sutherland. Veloz
contends that Sutherland was not qualified within the meaning of
the provision in part because he could not explain some
discrepancies in the GPS data. But, the government also offered
the testimony of Bill Eichhorn, an executive at U.S. Fleet
Tracking. Eichhorn was clearly a qualified witness whose testimony
sufficed to show the conditions in Rule 803(6) were met here. Nor
does Veloz argue otherwise. Thus, this challenge fails, too.
We move on to Veloz's challenge to the District Court's
decision at trial to admit certain testimony offered by Eichhorn,
the U.S. Fleet Tracking representative, and Elisabeth Lenehan, an
FBI staff operations specialist. Here, too, we find no merit to
Veloz's challenges.
Veloz contends that the District Court erred by
permitting Eichhorn to recount hearsay when he "introduced the
purchase orders and information from other companies" than U.S.
Fleet Tracking, which we understand to be a reference to certain
records relating to AT&T, Brickhouse Security, and FedEx to which
Eichhorn had referred in his testimony. Our review is for abuse
of discretion. See Ackies, 918 F.3d at 205.
The problem with this contention is that it rests upon
a mistaken understanding of the facts. Our review of the record
shows that the documents to which Eichhorn referred in his
- 23 - testimony were emails and records pulled from U.S. Fleet Tracking's
own recordkeeping system. To the extent that the record can be
read to the contrary, moreover, any error would have been harmless,
given the substantial independent evidence of Veloz's guilt. Nor
does Veloz develop any argument to the contrary.
Veloz's challenges with respect to Lenehan's testimony
also lack merit. Veloz first contends that the District Court
reversibly erred by permitting her to testify to the contents of
her conversation with T-Mobile regarding a phone seized from
Veloz's apartment and that one of the co-conspirators had listed
Maldonado in his phone as "H."
But, Veloz similarly fails to develop any argument about
why the admission of the T-Mobile testimony, even if improper, was
not harmless, given the evidence as a whole. See Zannino, 895
F.2d at 17. And, the record indicates that the testimony about
"H" was harmless, as a co-conspirator had already appeared at trial
and testified to the same effect. See United States v. Valdivia,
680 F.3d 33, 46 (1st Cir. 2012) (finding the admission of hearsay
harmless when it "is cumulative of other evidence in the record").
Nor does Veloz explain how Lenehan's testimony about "H" was
prejudicial.
Veloz next claims that the District Court erred by
allowing Lenehan to offer improper opinion testimony on matters
that included "what nicknames and letters meant. . . . [and]
- 24 - extraction reports she had not written." Veloz asserts that this
testimony enabled Lenehan "to link the alleged conspirators . . .
with her speculative interpretations" of the contact list and phone
numbers on a co-conspirator's phone. But, as Veloz fails to
identify the specific statements that he contends that Lenehan was
not qualified to interpret, the challenge is waived for lack of
development. See id.
We now turn to a challenge that Veloz brings to events
that occurred on the fifth day of the trial, when the District
Court conducted the voir dire of Eichhorn, outside the presence of
the jury, to determine his qualifications as an expert witness.
The record shows the following: Veloz's counsel asked the District
Court whether Veloz was available to attend the voir dire. The
District Court responded both that it did not know and that it was
not necessary to have Veloz present for that portion of the
proceedings. Veloz's counsel did not then further press the point,
and Veloz was not present for the voir dire.
On appeal, Veloz contends that he was excluded from the
voir dire and that this exclusion violated his rights under the
Due Process Clause and the Confrontation Clause to be present "at
all critical stages of the trial." Rushen v. Spain, 464 U.S. 114,
- 25 - 117 (1983) (per curiam).4 The government responds that, because
Veloz did not press the point below, he must satisfy the plain
error standard, see United States v. Karmue, 841 F.3d 24, 27 (1st
Cir. 2016), which is a point that Veloz disputes.
Insofar as Veloz must satisfy the demanding plain error
standard, his challenge cannot succeed because he makes no attempt
to show how any error was plain, see Severino-Pacheco, 911 F.3d at
20. But, even if we were to review his challenge de novo, see
Karmue, 841 F.3d at 26, we do not see how it has merit.
The Due Process Clause "requires that a defendant be
allowed to be present 'to the extent that a fair and just hearing
would be thwarted by his absence,'" Kentucky v. Stincer, 482 U.S.
730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 108
(1934)). Veloz appears to have been in no position to assist his
counsel with respect to any factual disputes regarding Eichhorn's
qualifications. Nor does Veloz offer any examples of the
objections that he would have made or assistance that he would
4Though Veloz fails to cite it in his brief, we note that Federal Rule of Criminal Procedure 43(a) codifies this Due Process right. See United States v. Iverson, 897 F.3d 450, 466 (2d Cir. 2018). Rule 43 provides, in pertinent part, that "the defendant must be present at: (1) the initial appearance, the initial arraignment, and the plea; (2) every trial stage, including jury impanelment and the return of the verdict; and (3) sentencing." The rule also states that a defendant need not be present when "[t]he proceeding involves only a conference or hearing on a question of law." Fed. R. Crim. P. 43(b)(3).
- 26 - have offered had he been present at the voir dire. Thus, Veloz
fails to show how his presence at Eichhorn's voir dire would have
been necessary to ensure that it was a fair and just proceeding.
See id. at 747 (ruling against a defendant, in part, because he
gave "no indication that his presence at the competency hearing
. . . would have been useful in ensuring a more reliable
determination").5
That brings us to the suite of challenges that Veloz
brings to certain comments that the prosecutor made during his
closing argument and his rebuttal. Veloz chiefly contends, as he
did below, that the prosecutor made the improper comments by: (1)
engaging in "burden shifting" during rebuttal; (2) referring to
Romero; (3) characterizing "the U.S. Fleet [data and records] as
business records"; (4) characterizing "Romero as the pillar of the
case"; (5) stating that Veloz's counsel "[went] after Eichhorn";
and (6) claiming that Romero did not know he was being recorded.
We may "vacate a conviction only if the [prosecutor's
improper] remarks 'so poisoned the well that the trial's outcome
was likely affected.'" United States v. French, 904 F.3d 111, 124
5 Nor do we see any Confrontation Clause violation -- insofar as Veloz means to contend that there was one -- resulting from Veloz's absence from the voir dire. Veloz had an "opportunity for full and effective cross-examination" of Eichhorn with regard to his background during the trial. Stincer, 482 U.S. at 744.
- 27 - (1st Cir. 2018) (quoting United States v. Kasenge, 660 F.3d 537,
542 (1st Cir. 2011)). "In assessing this question, we consider
the severity of the conduct and whether it was deliberate, the
context, the presence of curative instructions and their likely
effect, and the strength of the prosecution's case." Id.
We review preserved challenges to the propriety of a
prosecutor's remarks de novo. See United States v. Zarauskas, 814
F.3d 509, 514 (1st Cir. 2016). We may assume that Veloz's
objections to each of these statements were timely made because,
even on that assumption, there is no basis for finding that the
District Court reversibly erred in overruling them.
We have already explained why Veloz's challenges to the
admission of Romero's statements via the revised transcript and to
the U.S. Fleet Tracking data lack merit. In light of that same
reasoning, there was nothing improper in the prosecutor referring
to Romero's statements in the revised transcript, given that the
statements were properly admitted, or to the GPS data being
business records, given that they were properly so deemed under
Federal Rule of Evidence 803(6). Nor do we see how, given the
substantial evidence against Veloz, these statements by the
prosecutor were so prejudicial as to affect the trial's outcome.
That is especially so given that the District Court instructed the
jury, both before and after closing arguments began, that "[w]hat
the lawyers say, what I say as far as any factual matter in the
- 28 - case goes, does not matter. You, as the jury, are the sole judges
of the facts." In fact, Veloz fails to develop anything more than
a cursory argument that the comments just described were so
prejudicial as to warrant overturning the conviction.
There remains to address only the other comments by the
prosecutor that Veloz identifies as problematic. But, as to these
comments, too, Veloz fails to demonstrate how any of them caused
the requisite prejudice. Thus, his challenges based on those
comments are meritless as well, even if we were to assume that any
of these comments were somehow improper.6
Next up is Veloz's penultimate challenge. It is to the
District Court's instruction to the jury, just before it began its
deliberations, that Maldonado's "recording was obviously made
without Mr. Romero's knowledge." Veloz argues that the District
Court's instruction "decided an issue of fact for the jury, and
clearly injected the court's opinion into evaluating the
evidence." In other words, Veloz contends, the instruction
"eliminated the possibility that the jurors could reject the
transcript outright as untrustworthy."
6The same is true as to Veloz's challenges to yet other comments that the prosecutor made that Veloz, for the first time on appeal, now contends were also improper.
- 29 - The government points out that, although Veloz made an
objection to a draft form of the instruction in the morning on the
day that jury was charged, he failed to renew that objection after
the jury was charged. Veloz responds that he did not renew his
objection at that time because the District Court stated that it
would consider the objections from that morning preserved. But,
Federal Rule of Criminal Procedure 30, which governs objections to
jury instructions, "require[s] the appellant to renew his
objection after the jury has been charged when the court has given
the parties that opportunity," United States v. Henry, 848 F.3d 1,
13 (1st Cir. 2017), and we have held that the fact that a district
court made a statement "after the charge that objections made prior
to it will be saved does not absolve the attorney from following
the strictures of the rule," id. (citation omitted).
Even if we were to treat the challenge as preserved, it
still would fail. The District Court repeatedly advised the jury
that it was the "sole judge[] of the facts." Moreover, Veloz does
not dispute that Romero was unaware that Maldonado was recording
his conversation with him, and the record provides no basis from
which a reasonable juror could conclude otherwise. Thus, we fail
to see how the District Court's statement in the instruction was
sufficiently prejudicial to constitute reversible error.
- 30 - Veloz's final ground for challenging his conviction
concerns a ruling that the District Court made after the jury
rendered its verdict that Veloz was guilty of the charged offense.
At that time, the District Court denied Veloz's motion pursuant to
Federal Rule of Criminal Procedure 33 for a new trial based on his
allegation that "evidence was tampered with, thereby denying [him]
a fair trial."7 We review a "denial of a Rule 33 motion for
manifest abuse of discretion with the respect due to the presider's
sense of the ebb and flow of the recently concluded trial." United
States v. Tull-Abreu, 921 F.3d 294, 301-02 (1st Cir.) (internal
citation and quotation marks omitted) (alterations omitted), cert.
denied, 140 S. Ct. 424 (2019). But, a district court "must
exercise that discretion sparingly and in the most extraordinary
circumstances, and only in order to avert a perceived miscarriage
of justice. In short, the ultimate test for granting a new trial
pursuant to [the Rule] is whether letting a guilty verdict stand
would be a manifest injustice." United States v. Gramins, 939
F.3d 429, 444 (2d Cir. 2019) (internal citations and quotation
marks omitted).
7 Rule 33 states that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires."
- 31 - Veloz's arguments concerning the District Court's
asserted error in denying his Rule 33 motion are not easy to
follow. As best we can tell, Veloz points to five instances of
alleged mishandling or tampering with evidence that he contends
were set forth in his Rule 33 motion: (1) someone tampered with
data on one of the laptops seized from Luis Reynoso's, a
co-conspirator, apartment; (2) a laptop seized from Veloz's
apartment showed that Veloz accessed a photo on July 23, 2012,
that did not come into existence until July 24, 2012; (3) GPS data
on Jose Guzman's, a co-conspirator, phone was "altered between
November 5 and November 15, 2012"; (4) two phones taken from Jose
Matos, a co-conspirator, were lost or destroyed during the
investigation; and (5) SA Orlando "returned crucial evidence to a
cooperator's wife without copying the materials first."
Veloz appears to be arguing that the evidence offered
against him was so unreliable, on account of these alleged problems
with the way evidence against him was handled, that there was
insufficient evidence upon which to convict him of the charged
offense. The District Court found, however, that Veloz's counsel
laid out each of these asserted problems with the way that the
government had handled the investigation to the jury and that the
jury, fully cognizant of those alleged problems, nonetheless found
Veloz guilty. Veloz does not challenge the finding that the
contentions that he raises in his Rule 33 motion were ones that
- 32 - the jury was given a full opportunity to consider. Nor does he
succeed in demonstrating that the contentions are such as to compel
a finding that, in consequence of them, the evidence against him
did not suffice to support the conviction, let alone that the
District Court manifestly abused its discretion in finding against
him on that point. As a result, this challenge to the denial of
his motion for a new trial fails. See United States v. Merlino,
592 F.3d 22, 32 (1st Cir. 2010)(stating that relief under Rule 33
for a sufficiency challenge may only be granted "where the evidence
preponderates heavily against the verdict" (quoting United States
v. Wilkerson, 251 F.3d 273, 278 (1st Cir. 2001)).
The conviction is affirmed.
- 33 -