United States v. Melvin

United States Court of Appeals
For the First Circuit

No. 12-1332

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES MELVIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Selya and Thompson,

Circuit Judges.

Edward J. O'Brien, with whom O'Donnell, Trossello & O'Brien
was on brief, for appellant.
Alex J. Grant, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

September 17, 2013
 SELYA, Circuit Judge. In criminal cases, proffer

sessions are commonly used as a means of facilitating plea

negotiations. A defendant's agreement to participate in a proffer

session carries with it both potential risks and potential rewards.

To protect the proffering defendant against unfairness,

prosecutors customarily offer assurances that they will not use

what the defendant reveals at the proffer session against him

should plea negotiations fail. In this case of first impression,

the government promised the defendant that it would not use against

him any "statements made or other information" disclosed at the

proffer session.

The proffer session came to naught. When trial became

imminent, the government attempted to pull a rabbit out of a hat:

it advised the defendant that, notwithstanding its earlier

assurances, it planned to introduce at trial voice identification

testimony from a police officer, based on what the officer had

heard at the proffer session, linking the defendant to a highly

incriminating recorded telephone conversation. Although the court

found the government's plan "troubling," it nonetheless denied the

defendant's motion in limine and allowed the government to present

the testimony. The jury returned a guilty verdict.

On appeal, the defendant advances three claims of error,

including a renewed challenge to the introduction of the voice

identification testimony. With respect to this pivotal issue, we

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conclude that the admission of the testimony transgressed the

proffer agreement and the defendant's due process rights. On the

assumption that such a transgression is subject to harmless error

review, we conclude that the proper barometer for that review

requires us to ask whether the government has shown that the error

was harmless beyond a reasonable doubt. Because the government has

not carried this heavy burden, we vacate the defendant's

conviction.

The moral of this story is that, especially when dealing

with criminal defendants at proffer sessions, the government must

turn square corners. The government did not do so here.

I. BACKGROUND

On February 19, 2010, an agent of the Federal Bureau of

Investigation (FBI), Jeffrey Lawrence, working with other law

enforcement personnel, set in motion a controlled purchase of crack

cocaine. The leading man in the production was a cooperating

witness, Robert Williams. The agents equipped Williams with video

and audio recorders, and a Massachusetts state trooper, Thomas

Fitzgerald, searched him to ensure that he had no drugs or other

contraband on his person.

Williams then made a recorded telephone call to the

target of the sting, Anthony Hook. During this call, Hook agreed

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to sell "three and a teenth" of crack cocaine1 for $500, and handed

the telephone to another individual to arrange the exchange. That

individual, a stranger to Williams, set up a meeting at the parking

lot of a package store (a retail liquor emporium) and stated that

he was wearing a black jacket. Williams replied that he would be

driving a blue Chevy Blazer.

After the call, Agent Lawrence gave Williams $500 to make

the buy. Williams then drove to the package store under the

watchful eye of agents in a surveillance van. Along the way, he

stopped for gas and spent a brief interlude unattended inside the

gas station's store.

After Williams arrived at the designated parking lot,

defendant-appellant James Melvin, wearing black clothing, entered

his vehicle. This encounter was surreptitiously videotaped.

Williams asked the defendant, "What we got right here?"

The defendant answered, "Three balls and a teenth." The videotape

shows the defendant removing an unidentifiable object from his

waistband. At trial, Williams testified that the object was crack

cocaine, which the defendant weighed on a scale and sold to him for

$500. The defendant then disembarked from the vehicle.

1
Testimony at trial indicated that the quantity mentioned
referred to three "eightballs," each comprising one-eighth of an
ounce of crack cocaine, plus one-sixteenth of an ounce of crack
cocaine.

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 As Williams began to leave, he was approached by a family

friend who "slapped him five" through the open window of his

vehicle. Williams's next stop was a meeting with government

agents, where he surrendered a bag of crack cocaine, a scale, and

the recording equipment.

The defendant was not immediately arrested. For reasons

not relevant here, he later wound up in state custody. Trooper

Fitzgerald happened to be present during the defendant's booking

and recognized him as the person who had entered Williams's vehicle

on February 19 (almost two months earlier). The trooper reported

this bit of serendipity to Agent Lawrence. On April 22, 2010, the

latter showed Williams an array of nine photographs (one of which

depicted the defendant) and asked him to identify the seller of the

cocaine. Williams chose the defendant's photograph.

A federal grand jury sitting in the District of

Massachusetts subsequently indicted the defendant on a single count

of possessing cocaine with intent to distribute. See 21 U.S.C.

§ 841(a)(1). The indictment was returned on May 20, 2010. That

same day, law enforcement personnel, including Officer James Mazza,

a Springfield police officer (who had been part of the February 19

surveillance team), interviewed the defendant at a proffer session.

The proffer session was held pursuant to a written proffer

agreement drafted by the government.

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 The proffer session proved fruitless and the defendant

proceeded to trial. The government posited that the defendant sold

crack cocaine to Williams in the parking lot. As part of its case

in chief, the government called Officer Mazza to testify that he

had familiarized himself with the defendant's voice during the

proffer session and, through that acquired knowledge, could

identify the defendant as the unknown speaker who had participated

in the February 19 telephone call. The defense attempted to point

the finger at Williams, implying that he had acquired the crack

cocaine elsewhere and had staged matters so as to shift the blame

to the defendant.

The jury found the defendant guilty. After the

imposition of sentence, this timely appeal followed.

II. ANALYSIS

In this venue, the defendant advances three claims of

error. This litany includes a claim that the district court should

have suppressed the photo array identification as impermissibly

suggestive and unreliable; a claim that Williams's testimony should

have been excluded because a government agent had told him that

payment for his services depended on future convictions; and a

claim that allowing Officer Mazza's voice identification testimony

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violated his due process rights.2 We address these arguments in

inverse order of difficulty.

A. The Photo Array.

We need not linger long over the defendant's challenge to

the photo array. The defendant filed a pretrial motion to suppress

this identification, arguing that only two of the nine photographs

were "close-ups" (one depicting the defendant, the other a man with

a beard and a facial scar); and that due to this peculiarity, the

array was both unreliable and impermissibly suggestive. The

district court deemed this argument unconvincing and so do we.

To withhold photo array identification evidence from a

jury, a court must be "persuaded that there was a very substantial

likelihood of irreparable misidentification." United States v.

Rivera-Rivera, 555 F.3d 277, 282 (1st Cir. 2009) (internal

quotation marks omitted). This analysis proceeds in two steps.

First, the court must determine whether the identification

procedure was impermissibly suggestive. If it was not, the inquiry

ends. If, however, the defendant can successfully negotiate this

first step, the court must then examine the totality of the

circumstances to ascertain whether the identification was

2
The government asserts that both the second and third claims
of error are procedurally defaulted because the defendant did not
raise them squarely enough in the court below. Our examination of
the record satisfies us that both claims are preserved.

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nevertheless reliable. See United States v. DeCologero, 530 F.3d

36, 62 (1st Cir. 2008).

Our review of a district court's bottom-line conclusions

about reliability and suggestiveness is plenary. See United States

v. Espinal-Almeida, 699 F.3d 588, 602 (1st Cir. 2012), cert.

denied, 133 S. Ct. 1837 (2013). We review any underlying findings

of fact for clear error. See id.

The defendant's assignment of error falters at the first

step of the two-step pavane. As the district court noted, the

defendant's photograph shows him only "somewhat closer to the

camera" than others. Minor differences within the components of a

photo array are to be expected and, without more, do not render the

identification procedure impermissibly suggestive. See, e.g.,

United States v. Brennick, 405 F.3d 96, 99-100 (1st Cir. 2005).

Here, there is no "more."

To dwell on this aspect of the case would be pointless.

Jurors should not be treated as gullible dupes, see Manson v.

Brathwaite, 432 U.S. 98, 116 (1977), and photo array identification

evidence should be withheld from them "only in extraordinary

cases," Rivera-Rivera, 555 F.3d at 282 (internal quotation marks

omitted). The photo array here was unexceptionable, and the

district court's denial of the motion to suppress was proper.

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 B. The Bounty.

In an argument that reminds us that the love of money is

the root of all evil, see I Timothy 6:10, the defendant asserts

that the government's quondam financial arrangement with Williams

— dollars for convictions — so tainted his testimony as to work a

violation of the Due Process Clause, U.S. Const. amend. V. This is

a closer question, but we ultimately conclude that the prosecutor's

timely intervention and the deployment of effective safeguards

sufficed to mitigate the taint of which the defendant complains.

The relevant facts are not disputed. Williams did not

agree to serve as a government cooperator for love of country but,

rather, because the government promised to compensate him. Between

December of 2010 and March of 2011, Agent Lawrence told him on

approximately six occasions that he would be paid only when the

government had obtained three convictions through his cooperation.

When the prosecutor learned of this tawdry arrangement,

he put an end to it. On March 16, 2011, he revealed the

arrangement to defense counsel and explained that he had directed

Agent Lawrence to disabuse Williams of the notion that future

payments would be contingent upon convictions. At a meeting held

soon thereafter, Agent Lawrence, flanked by two prosecutors, told

Williams that he would be paid for his services, not for

convictions.

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 Prior to trial, the defendant moved in limine to exclude

Williams's testimony as irrevocably corrupted by the original

bounty arrangement. The district court denied the motion, citing

the government's later disavowal and disclaimer of that

arrangement.

In appealing this ruling, the defendant places heavy

reliance on prior decisions of this court that contain language

condemning witness compensation contingent upon convictions.

United States v. Cresta, 825 F.2d 538 (1st Cir. 1987); United

States v. Dailey, 759 F.2d 192 (1st Cir. 1985). This language, he

insists, should have led the district court to exclude Williams's

testimony.

In Dailey, we examined plea agreements in which the

government's promise to recommend leniency depended on the "value"

or "benefit" of cooperation to the government. 759 F.2d at 194-97.

We held that "established safeguards" — informing the jury of the

precise nature of the arrangement, cross-examination, and specific

instructions to weigh the cooperating witness's testimony with care

— would adequately protect the defendant's due process rights

against any potential prejudice arising from the government's

promise. Id. at 196-97, 200.

Dailey is not directly applicable to this case because we

took pains to distinguish the agreements at issue there from those

in which a "promised benefit is made contingent upon a resulting

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indictment or conviction." Id. at 197. However, our decision

acknowledged in dictum that we could "think of no instance in which

the government would be justified in making a promised benefit

contingent upon the return of an indictment or a guilty verdict."

Id. at 201. We added "that benefits made contingent upon

subsequent indictments or convictions skate very close to, if

indeed they do not cross, the limits imposed by the due process

clause." Id. at 201 n.9.

Dictum in Cresta reinforced these observations. Though

not faced with an actual bounty arrangement there, we reiterated

that "we would not condone" an agreement promising such contingent

benefits. 825 F.2d at 547.

We do not retreat from what we said in Dailey and Cresta:

we continue to view the practice of conditioning a witness's

benefits upon the incidence of future indictments or convictions as

pernicious. A cooperator whose eyes are fixed on such a prize

might well be tempted to wander from the path of candor and, thus,

unduly prejudice the criminal defendant.

We add, moreover, that such bounty arrangements are

likely to boomerang against prosecutors. After all, fee

arrangements that are contingent upon the securing of indictments

or convictions detract mightily from a cooperator's credibility at

trial. We are, therefore, puzzled as to why the government would

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employ such a tactic more than a quarter century after we had twice

disapproved of it.

Here, however, the story does not end with a witness

laboring under the belief that conviction — and conviction alone —

will earn him his keep. Before Williams was called to testify, the

prosecutor pulled him back from the abyss and removed the unsavory

lure of dollars for convictions. None of our prior cases address

such a situation, even in dictum.

In our view, the prosecutor's intervention, coupled with

the district court's prophylactic instructions, makes all the

difference. With the bounty taken unequivocally off the table, we

think that the question of how to proceed was within the sound

discretion of the trial court.

Here, the court decided that sunlight was a sufficient

disinfectant. The nature of the bounty arrangement and the

prosecutor's efforts to rectify the problem were fully disclosed to

the jury. Williams was subject to cross-examination on these

points as well as on his overall testimony. As a further

safeguard, the district court gave pellucid instructions that the

jury should consider the testimony of the cooperating witness "with

particular caution" and an eye toward "whether his testimony has

been affected by his interest in maintaining his relationship with

the government or by any of the benefits he has received from the

government." In the circumstances of this case, we think that this

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set of safeguards was adequate to protect the defendant's due

process rights. When all is said and done, we cannot set aside a

defendant's conviction simply because we disapprove of some aspect

of the government's handling of the case. See, e.g., United States

v. Santana, 6 F.3d 1, 9-11 (1st Cir. 1993) (discussing limits of

supervisory power). On this record, we conclude that the

prosecutor's timely and unequivocal correction of Agent Lawrence's

blunder combined with the effective safeguards that were employed

at trial sufficed to prevent a due process violation.

C. The Proffer Agreement.

The defendant's final claim of error is the most vexing.

The defendant agreed to appear at a proffer session. That session

was governed by a written agreement, drafted by the government,

which stated in pertinent part:

1. No statements made or other information
provided by [the defendant] will be used by
the United States Attorney directly against
him, except for purposes of cross-examination
and/or impeachment . . . .

2. The government may make derivative use of,
or may pursue any investigative leads
suggested by, any statements made or other
information provided by [the defendant] in the
course of the proffer.

Officer Mazza attended this proffer session on behalf of

the government and became familiar with the defendant's voice

through his attendance. When plea negotiations cratered and trial

became necessary, the government sought to have him identify the

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defendant's voice on the inculpatory recording of the February 19

telephone call. The defendant moved in limine to exclude this

testimony, arguing that it was a direct use of "other information"

provided by the defendant — his voice tone and characteristics — at

the proffer session. Even though the district court acknowledged

that the government's tactic left "a bad taste," it denied the

motion. The court reasoned that the Criminal Rules protect a

defendant's statements at a proffer session but not the sound of

his voice.

The district court's reasoning fails to take into account

the actual language of the proffer agreement. To this extent, its

approach was incorrect. Informal immunity agreements, such as

proffer agreements, "are shaped . . . by the language of the

contract conferring the immunity." United States v. Hogan, 862

F.2d 386, 388 (1st Cir. 1988). The district court should have

looked, therefore, to the text of the proffer agreement. The

meaning of the proffer agreement presents a question of law, which

engenders de novo review. See, e.g., United States v. Atwood, 963

F.2d 476, 478 (1st Cir. 1992). In performing this interpretative

task, we are guided chiefly by contract-law principles. See United

States v. McLaughlin, 957 F.2d 12, 16 (1st Cir. 1992); Hogan, 862

F.2d at 388.

In the case at hand, the relevant contract-law principle

is that "whenever possible, contracts should be construed to give

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effect to every word, clause, and phrase." Crowe v. Bolduc, 365

F.3d 86, 97 (1st Cir. 2004); see United States v. Alegria, 192 F.3d

179, 185 (1st Cir. 1999). Thus, the phrase "other information,"

which appears in the proffer agreement, must mean something

different from the antecedent term "statements" (which refers to

statements that the defendant might make at the proffer session).

Any other interpretation would render the phrase "other

information" redundant (and, thus, meaningless).

Viewed in context, we think that the natural, common-

sense interpretation of the phrase "other information provided by

[the defendant]" in the proffer agreement encompasses any knowledge

the government gained at the proffer session because of the

defendant's presence there. See, e.g., Webster's Third New

International Dictionary 1160 (2002) (defining "information" as

"knowledge communicated by others or obtained from investigation,

study, or instruction"). As such, knowledge of the defendant's

voice tone, inflections, and speaking characteristics gleaned from

the defendant's speech at the proffer session is "other

information" that cannot be used against the defendant in the

government's case in chief. But that is exactly what the

government did: it elicited testimony from Officer Mazza on direct

examination about the knowledge of the defendant's voice that he

acquired at the proffer session and then, building on that

foundation, had Officer Mazza identify the defendant as the third

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person who spoke during the recorded conversation between Williams

and Hook.

If more were needed — and we doubt that it is — another

settled principle of contract interpretation counsels in favor of

reading the phrase "other information provided" by the defendant

broadly. Under the doctrine of contra proferentem an ambiguous

term in a contract normally should be construed against the

interest of the drafter, and this praxis applies to proffer

agreements. See, e.g., United States v. Hill, 643 F.3d 807, 875-76

(11th Cir. 2011). Here, the phrase "other information provided" by

the defendant cannot be said unambiguously to exclude the tone,

inflection, and other characteristics of the defendant's voice.

Struggling to parry these thrusts, the government

suggests that the language "statements made and other information

provided" in the proffer agreement was meant to mirror the

distinction between use immunity for oral testimony and act-of-

production immunity for documents and other tangible things. See

18 U.S.C. §§ 6001-6003. This suggestion is nothing more than an

attempt to rewrite the proffer agreement: the government could have

framed such a dichotomy when it drafted the proffer agreement, but

it did not do so. Whatever may be the contours of formal use

immunity granted by courts, it is the language of the proffer

agreement, not the language of the immunity statute, that defines

the parties' rights and responsibilities arising out of a proffer

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session. See Hogan, 862 F.2d at 388. Consequently, we reject out

of hand the government's strained attempt to forge an analogy.

The government also contends that the phrase "other

information" cannot encompass the defendant's tone, inflections,

and other vocal characteristics because it could have successfully

moved to compel a voice exemplar from the defendant. See United

States v. Dionisio, 410 U.S. 1, 5-7 (1973). To buttress this

contention, the government muses that the proffer agreement should

not be read to protect information that the government could have

procured by compulsion.

This contention is futile. We are not concerned with

what the government might have done but, rather, with what the

government did. See United States v. Santana, 175 F.3d 57, 64 n.6

(1st Cir. 1999). The government never moved for a voice exemplar

here. Instead, it relied on its (mistaken) interpretation of the

proffer agreement. Much as it might like to do so, it cannot

reinvent that agreement now.

The short of it is that the existence of a parallel

universe in which the government properly obtained its sought-after

information does not render its misstep in this one any less

violative of the defendant's due process rights. A constitutional

end may not be reached by unconstitutional means.

In a last-ditch effort to save the day, the government

notes that the proffer agreement permits derivative uses of

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"statements made or other information provided" by the defendant

during the proffer session. Clinging to this clause, it cursorily

suggests that Officer Mazza's voice identification testimony was a

derivative, not direct, use of information from the proffer

session. This is simply wrong: the government made a direct, not

a derivative, use of the proscribed information. See, e.g., United

States v. Pielago, 135 F.3d 703, 710-11 (11th Cir. 1998)

(explaining that introducing information obtained from the

defendant against him is a direct use of that information).

The short of it is that the government, having agreed not

to use information provided by the defendant at the proffer

session, reneged on that promise and used such information at

trial. We will not countenance that sleight-of-hand. As we have

said, "the government must turn square corners when it undertakes

a criminal prosecution." Ferrara v. United States, 456 F.3d 278,

280 (1st Cir. 2006).

Our conclusion that the district court erred in admitting

Officer Mazza's voice identification testimony does not end our

odyssey. We must also decide whether the admission of that

testimony should be considered harmless.3

3
It is open to legitimate question whether the rule demanding
"automatic reversal" based on "policy interest[s]" might apply to
this case. Puckett v. United States, 556 U.S. 129, 141 & n.3
(2009) (noting the rule as articulated by Santobello v. New York,
404 U.S. 257 (1971), but declining to address its continued
viability). But the parties have not raised this issue and, in all
events, the error was not harmless. Consequently, we need not

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 There are two standards for measuring harmless error in

a criminal case. The less grueling standard (viewed from the

government's coign of vantage) allows a conviction to stand as long

as a reviewing court can say "with fair assurance, after pondering

all that happened without stripping the erroneous action from the

whole, that the judgment was not substantially swayed by the

error." United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)

(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

This less grueling standard applies chiefly to errors of a non-

constitutional dimension. The stricter standard, which applies to

errors of constitutional dimension, requires reversal unless the

government proves "beyond a reasonable doubt that the error did not

influence the verdict." Id. (citing Chapman v. California, 386

U.S. 18, 23-24 (1967)).

Laboring to put the genie back in the bottle, the

government takes the position, without explanation or elaboration,

that the less grueling standard should apply to this error. We do

not agree.

Proffer agreements are sui generis, and the contract-law

principles that courts use in construing them are glossed with a

concern that the defendant's consent to appear at a proffer session

should not become a lever that can be used to uproot his right to

fundamental fairness under the Due Process Clause. See United

probe this point more deeply.

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States v. $87,118.00 in U.S. Currency, 95 F.3d 511, 517 (7th Cir.

1996). "Unlike the normal commercial contract," it is "due process

[that] requires that the government adhere to the terms of any

. . . immunity agreement it makes." United States v. Pelletier,

898 F.2d 297, 302 (2d Cir. 1990); see Hill, 643 F.3d at 874.

Because the government's adherence to the terms of the

proffer agreement is insured by the Due Process Clause, its failure

to adhere is perforce of constitutional dimension. It follows

inexorably that the stricter harmless-error standard applies to

such a failure. See, e.g., Hill, 643 F.3d at 877-79. For present

purposes, this means that the government must show beyond any

reasonable doubt that the guilty verdict was not influenced by the

trial court's erroneous admission of Officer Mazza's voice

identification testimony.

The government strives to minimize the force of Officer

Mazza's testimony. It asseverates that the defendant's identity

was not in question because he admitted that he was the man in

Williams's vehicle. Thus, its thesis runs, Officer Mazza's

testimony could not have caused any harm. This asseveration,

however, is little more than magical thinking; it confuses and

conflates the identity of the person in Williams's vehicle with the

identity of the person who spoke during the antecedent telephone

call. We are directed to no portion of the record in which the

defendant conceded the latter point.

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 The government has a fallback position. It boasts that

evidence of the defendant's guilt was so overwhelming as to render

the tainted voice identification benign.4 This proposition relies

heavily on Williams's testimony and the videotaped recording of

what transpired in Williams's vehicle. But probative force, like

beauty, often lies in the eye of the beholder. Here, the videotape

showed no exchange of drugs, and Williams — especially in light of

the aborted bounty arrangement — hardly could be regarded as a

paragon of veracity.

These issues are not merely theoretical. The defendant

argued that Williams set him up presumably to earn the bounty, and

that Williams, not the defendant, supplied the drugs. While the

government's evidence was adequate to sustain the defendant's

conviction against a sufficiency challenge, "more is required to

show harmlessness beyond a reasonable doubt." United States v.

Perez-Ruiz, 353 F.3d 1, 19 (1st Cir. 2003).

In the end, Officer Mazza's voice identification

testimony bore on both furcula of the defendant's two-fold argument

for acquittal. For one thing, the defendant claimed that it was

Williams who was responsible for the drugs that were later

confiscated by the authorities; yet Officer Mazza's voice

4
This rodomontade seems suspiciously self-serving. If the
government's case was so strong, one might legitimately wonder why
the government worked so tirelessly to overcome the district
court's doubts about the propriety of the voice identification
testimony and pave the way for its admission.

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identification pegged the vehicle encounter as a pre-arranged drug

deal and, thus, undermined the defendant's argument that the

encounter was merely a staged show. For another thing, the

defendant vigorously attacked Williams's credibility; yet Officer

Mazza's testimony bolstered Williams's account of who had

participated in the crucial telephone call.

To cinch matters, we need look no further than the

prosecutor's summation to gauge the importance of Officer Mazza's

voice identification testimony. The prosecutor emphasized that the

jurors would "know that it was the defendant who got in the car and

who's on the telephone call beforehand because of the voice

identification made by Officer Mazza." The government should not

be allowed to have it both ways. Cf. United States v. Tierney, 760

F.2d 382, 388 (1st Cir. 1985) ("Having one's cake and eating it,

too, is not in fashion in this circuit."). If Officer Mazza's

voice identification testimony was critical (as the prosecutor told

the jury), the government should not now be heard to dismiss that

testimony as trivia.

To sum up, we cannot say beyond a reasonable doubt that

the guilty verdict in this case was uninfluenced by the erroneous

admission of Officer Mazza's voice identification testimony.

Therefore, the defendant's conviction cannot stand.

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

we vacate the defendant's conviction and remand for a new trial in

which the district court shall exclude any testimony that is a

direct use of "statements made or other information" garnered from

the defendant's proffer session.

Vacated and Remanded.

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