United States v. Verdugo

United States Court of Appeals
For the First Circuit
Nos. 08-2175
08-2217

UNITED STATES OF AMERICA,

Appellee,

v.

ADOLFO VERDUGO and
RAFAEL FERNÁNDEZ-ROQUE,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Barbadoro,* District Judge.

Tamara A. Barney, with whom B. Alan Seidler were on brief for
appellant Verdugo.
Robert C. Andrews, for appellant Fernández-Roque.
Donald C. Lockhart, Assistant United States Attorney, with
whom Luis M. Matos, Acting United States Attorney, and Mary Rogers,
Assistant United States Attorney, were on brief for appellee.

August 19, 2010

*
Of the District of New Hampshire, sitting by designation.
 BARBADORO, District Judge. Adolfo Verdugo and Rafael

Fernández-Roque challenge their convictions for conspiracy to

distribute and possess with intent to distribute cocaine. They

argue, among other things, that the trial court erred in (1)

refusing to suppress certain physical evidence and admissions, (2)

allowing testimony from a government agent interpreting wiretapped

communications, (3) declining to admit a videotape of a statement

that Verdugo gave to government agents, and (4) failing to properly

instruct the jury concerning the inferences that can be drawn from

a defendant’s presence at the scene of a crime. We affirm both

convictions.

I.

In November 2006, Drug Enforcement Agency (“DEA”) agents

learned that a large-scale drug distribution operation based in

California was importing cocaine into Rhode Island. The agents

identified Omar Altamirano-Nunez, also known as Juan Carlos Diaz

Delgadillo, as the lead target of their investigation in the Rhode

Island area, and obtained a court order authorizing them to

intercept Altamirano’s telephone calls on a land line and two cell

phones. On March 5, 2007, agents began monitoring Altamirano’s

calls.

A. The Intercepted Phone Calls

On May 26, 2007, Altamirano received a call in Spanish

from a man later identified as Verdugo. In that call, placed from

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a California cell phone number, Verdugo told Altamirano to “get

ready” as he would have “a little dinner” for Altamirano by Monday.

Verdugo indicated that he planned to “drop off” some “things” and

instructed Altamirano to “come this way . . . some fifty [50] or

sixty [60] miles” from where “eighty-four [84] is by nine [9] one

[1].” Agents interpreted this to mean that Verdugo planned to

deliver drugs to Altamirano on Monday, May 28, 2007 in the

Hartford, Connecticut area, near the intersection of Interstate 84

and Interstate 91.

Over the next several days, agents intercepted a number

of additional coded conversations detailing the planned drug

transaction. The day after Verdugo’s call, an unidentified man

phoned Altamirano from Mexico and stated, “[M]y mom[] is going over

there,” to which Altamirano responded that he would be “waiting for

her.” The unidentified caller also told Altamirano that “the month

of February brings twenty-nine [29],” and that he would leave

Altamirano “in charge to get the medicine” and “give it to these

people.” Agents interpreted this to mean that a drug delivery of

29 kilograms was to take place as Verdugo’s call had indicated.

Subsequent calls revealed that the transaction had been delayed but

was expected to occur on Tuesday, May 29, 2007.

On Tuesday evening, Altamirano called Verdugo and Verdugo

assured Altamirano that he was “almost arriving” and that

Altamirano should “come over . . . to the side where the Simpsons

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live.” Agents understood this to be a reference to The Simpsons,

a television show set in a town called Springfield, and inferred

that the drug transaction would occur near Springfield,

Massachusetts, which is approximately 30 miles north of Hartford

along Interstate 91. Altamirano told Verdugo that he would set out

to meet him when Verdugo arrived at the actual rendezvous site, and

instructed Verdugo to call him with a nearby exit number upon

arrival. Verdugo estimated that he would arrive between 2:00 and

3:00 a.m.

B. The Surveillance

Later that evening, agents conducting surveillance

followed Altamirano as he left his Providence residence in a Honda

minivan and drove to two other residences in the area where he

picked up Fernández and a man later identified as Idelfonso

Betancourt-Rodriguez. Agents then followed the three men in the

minivan to another Providence residence and watched as Fernández

and Betancourt got out of the minivan and into a Jeep Cherokee.

Agents continued to monitor the suspects’ phone calls, and followed

the two vehicles as they drove in tandem west on Interstate 90

toward Springfield.

Shortly after midnight, Betancourt called Altamirano.

Altamarino noted that the three men were set to arrive ahead of

schedule, and decided that they should “take a ride and at the next

exit . . . come back to see how things are.” A few minutes later,

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they agreed to meet at a nearby Econo Lodge motel to “get together

. . . and wait for the guy to call.” Agents then followed the

vehicles to the motel and watched as the three men went inside.

Verdugo called Altamirano while he was waiting at the

motel and informed him that Verdugo was heading north on Interstate

91. Altamirano told Verdugo that he was at the location that they

had previously discussed, and the two agreed that Verdugo would

“look for a good spot” for them to meet. Altamarino, Fernández,

and Betancourt then left the motel and returned to their respective

vehicles. Agents followed them as they proceeded first along

Interstate 90 and then north on Interstate 91.

Verdugo later informed Altamarino that he had reversed

direction and begun heading south on Interstate 91 after he had

been unable to find a place to stop. Agents then tracked the Jeep

and the minivan as they turned around and began heading south on

Interstate 91. At 3:10 a.m., Verdugo called Altamarino to inform

him that he had stopped at a rest area. A few minutes later, he

called again and instructed Altamirano to “go as if [he was]

getting off, and get in between me and the other one,” which agents

interpreted as an indication that two trucks were parked at the

rest area. He assured Altamirano that the area was “clean,” and

Altamirano told Verdugo that his “guy” was “bringing one of those

Cherokees.” Verdugo told Altamirano to instruct the driver of the

Cherokee to “get in front and . . . right away.” Altamirano then

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called Betancourt and relayed Verdugo’s instructions. Altamirano

told Betancourt to “get in between the two [trucks], there’s two,

the black one and you know which one is the guy’s” and then to

“[t]urn everything off.”

C. The Drug Transfer

Shortly after Altamirano ended his call to Betancourt,

DEA Agent Michael Naylor, one of the agents conducting the

surveillance, saw the Jeep turn into a rest area while the minivan

continued south on Interstate 91. Naylor watched as the Jeep

pulled in between two tractor-trailer trucks and shut its lights

off for between thirty seconds and a minute. Immediately

thereafter, the Jeep turned its lights back on and left the rest

area.

At 3:18 a.m., Fernández called Altamirano and told him,

“I’m ready,” to which Altamirano responded, “[G]o ahead. I’m

driving slowly, pass me by.” After this conversation occurred,

Naylor and other agents following the Jeep saw the minivan and the

Jeep meet and continue together down Interstate 91. In a final

call at 3:21 a.m., Verdugo assured Altamirano that “[e]verything

[was] fine . . . it’s done.”

D. Arrests of Fernández, Betancourt, and Altamarino

Agents stopped the Jeep at approximately 3:30 a.m. and

discovered a duffel bag lying on the back seat of the vehicle that

contained what was later determined to be 29 kilograms of cocaine.

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Fernández and Betancourt were arrested, and a silver T-Mobile cell

phone was seized from Fernández’s person. The two men were then

transported to the Charlton, Massachusetts state police barracks

where they were advised of their Miranda rights in Spanish by

Special Agent Ryan Arnold of the Bureau of Immigration and Customs

Enforcement. After acknowledging that he understood his Miranda

rights, Fernández stated that (1) he was unsure of his address in

Providence, (2) he worked for a man named Juan Carlos at a garage,

and (3) he was a Mexican national who was illegally living in the

United States. Fernández also raised his hand when he and

Betancourt were shown the silver cell phone and asked: “Whose is

this?”

Naylor, along with other DEA agents and law enforcement

officers, stopped the minivan and arrested Altamirano at

approximately 4:00 a.m. Naylor seized two cell phones from the

minivan and confirmed that the phones had the same two cell phone

numbers that the agents had been monitoring.

E. The Rest Area Encounter

As law enforcement officers stopped and arrested

Fernández, Betancourt, and Altamarino, other Massachusetts state

troopers and DEA agents secured the rest area. Officer Thomas

Nartowicz, who was working with the DEA team, observed two tractor-

trailer trucks parked near the exit of the rest area. One of the

trucks had California license plates, a sign that read “Verdugo

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Trucking,” and an engine that was still warm. The other had

license plates from a southern state, a cold engine, and was driven

by a man who needed to be awakened from sleep and did not speak

with a Spanish accent. On the basis of these observations and

additional information obtained from members of the DEA team,

Nartowicz and Trooper Robert Wycoff focused their attention on the

truck with the California plates, shined a flashlight on the cab

area of the suspected truck, and, with guns drawn, directed the

occupants to come out. Verdugo and a second man, later identified

as Esteban Arias-Cortez, emerged from the cab moments later and

were handcuffed. Nartowicz then inspected the cab for additional

occupants and readily available weapons but found nothing of

significance.

Prior to being advised of his Miranda rights, Verdugo

told Nartowicz that he owned the truck and was shipping produce to

a company in Hatfield, Massachusetts. Nartowicz then asked Verdugo

and Arias whether there were any illegal substances in the cab

area, and both men said no. Another trooper joined the officers at

the scene with a K-9 dog, and obtained Verdugo’s consent to search

the truck’s cab area. The search did not reveal any contraband

materials.

Agent Daniel MacIsaac, another member of the DEA team,

later obtained Verdugo’s consent to search the cab area a second

time, and this time he found four cell phones. Through radio

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communications with Naylor, MacIsaac learned that Naylor had seized

Altamirano’s cell phones, and planned to call the California phone

number that Verdugo had been using to communicate with Altamirano.

When Naylor dialed the phone number, one of the four phones that

MacIsaac had just seized from the cab area rang. MacIsaac then

asked Verdugo and Arias to whom the ringing phone belonged, and

Verdugo replied that the phone was his.

Following the seizure of the four cell phones, Nartowicz

advised Verdugo of his Miranda rights in English by reading from a

pre-printed card. Verdugo agreed to waive his Miranda rights, and

consented to a search of the truck’s cargo compartment. Because it

was dark, Nartowicz and MacIsaac asked Verdugo and Arias to

accompany them to a nearby police barracks for fingerprinting and

a more thorough search of the truck, and assured them that they

were not under arrest. Both men agreed to proceed with the

officers to the barracks, and the group departed.

Verdugo and Arias arrived between 4:00 and 4:50 a.m. at

the Northampton, Massachusetts state police barracks, where they

were fingerprinted and photographed as agents conducted a search of

the truck’s cargo compartment. The suspects were then asked to

identify the four cell phones that had been seized during the

search at the rest area. Verdugo again admitted that he owned the

ringing cell phone and asserted that he also owned one of the three

remaining phones. Verdugo then signed a “Prisoner Property

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Inventory” form stating that he owned both phones. Verdugo and

Arias were released later that morning.

F. Verdugo’s Arrest

On July 11, 2007, a Rhode Island grand jury charged

Altamirano, Betancourt, Fernández, and Verdugo with conspiracy to

distribute and possess with intent to distribute over five

kilograms of cocaine. A warrant was issued for Verdugo’s arrest,

and Naylor and DEA Agent Anthony Cardello later traveled to Pomona,

California to execute the warrant. At Naylor’s direction, local

authorities stopped and arrested Verdugo on July 25, 2007 as he was

driving near his home in Pomona. Verdugo was handcuffed and placed

in the back of a patrol car. Naylor and Cardello, who had observed

the traffic stop, approached Verdugo as he sat in the patrol car.

Verdugo confirmed that he understood English, and Naylor read

Verdugo his Miranda rights from a pre-printed card as he crouched

near the open door of the patrol car. Verdugo indicated that he

understood his rights and agreed to speak with Naylor.

Verdugo initially denied having any involvement in the

drug transaction. Naylor then confronted Verdugo with evidence of

his intercepted remarks to Altamirano regarding their planned

meeting near Springfield, and Verdugo admitted that he had

delivered the 29 kilograms of cocaine to Massachusetts two months

earlier, but denied that he had received any money. Naylor also

showed Verdugo a photograph of Altamirano, whom he identified as

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Juan Carlos. Verdugo agreed to cooperate, but told the agents that

he had nothing to offer.

Agents then brought Verdugo to an interview room at the

Pomona police station. There, Naylor presented Verdugo with a form

explaining his Miranda rights and read the form to him. Verdugo

signed the form, and the agents began questioning him. Verdugo

immediately invoked his right to counsel and refused to acknowledge

his earlier confession. The interview, which lasted approximately

eight minutes, was recorded on videotape.

G. The Suppression Hearing and Trial

Verdugo and Fernández each filed motions to suppress the

physical evidence obtained from the search of their vehicles and

the statements that they made to government agents. After

conducting a hearing that extended over several days, the court,

ruling from the bench, denied Verdugo’s motion to suppress in full,

denied Fernández’s motion to the extent that it challenged the

lawfulness of his arrest, and reserved judgment as to whether

Arnold had obtained a valid waiver of Fernández’s Miranda rights

before questioning him. The court indicated that it would address

Fernández’s unresolved claim in a written order after it had

considered post-hearing filings. Fernández and the government each

filed a supplemental memorandum addressing the issue a few days

later, but the court did not rule on the motion until the third day

of trial, when it denied the motion in a text order.

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 At trial, the government established that the ringing

cell phone seized from the cab of Verdugo’s truck and silver T-

Mobile cell phone seized from Fernández’s person had been used to

make and receive intercepted communications with Altamirano.

Naylor testified that he could identify both Verdugo’s and

Fernández’s voices on the intercepted communications. The court

also allowed Naylor to interpret Altamarino’s wiretapped

conversations with Verdugo, Fernández, Betancourt, and other

alleged conspirators. Naylor testified concerning the statement

that Verdugo made when he was arrested, but the court barred

Verdugo from introducing the videotape of the statement he made at

the Pomona police station. Finally, the court refused to give

Fernández’s proposed “mere presence” jury instruction and instead

gave the jury its own instruction on the subject.

On April 11, 2008, Fernández and Verdugo were convicted

of conspiracy to distribute and possess with intent to distribute

cocaine following a four-day jury trial. After trial, the district

court, sua sponte, issued a written decision concluding that it had

mistakenly denied Fernández’s motion to suppress his statement to

Arnold because the government failed to establish during the

suppression hearing that Fernández had voluntarily waived his

Miranda rights. United States v. Fernández-Roque, CR No. 07-100

S., 2008 WL 2148750, at *3 (D.R.I. May 21, 2008). Approximately

two months later, in response to post-trial motions, the court

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reconsidered its ruling and reinstated its initial order denying

Fernández’s motion to suppress. United States v. Fernández-Roque,

CR No. 07-100-03 S., 2008 WL 2845044 (D.R.I. July 22, 2008). This

time, the court relied on Arnold’s testimony at trial that

Fernández had affirmatively waived his Miranda rights. Id. at *4.

II.

Verdugo and Fernández attack their convictions on

multiple grounds. We begin with their challenges to the district

court’s suppression rulings.

A. Suppression Issues

1. Verdugo

a. The Search of Verdugo’s Truck

Verdugo first argues that the district court erred in

refusing to suppress the cell phones seized from his truck because

the agents lacked probable cause and searched the truck without a

warrant. This argument is a nonstarter.

Before MacIsaac searched Verdugo’s truck, the agents

working with him had intercepted multiple incriminating cell phone

calls and corroborated those calls with surveillance. These

investigative efforts provided compelling evidence of what the

agents reasonably believed was a drug deal in progress. Further,

while the agents no longer had reason to believe that drugs would

be found inside Verdugo’s truck, they had ample grounds to expect

that a search of the truck would uncover the cell phone that

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Altamarino had been calling to coordinate the drug transfer.

Because the collective knowledge of the agents working with

MacIsaac on the investigation is attributable to him when

determining whether the search was justified, see United States v.

Pardue, 385 F.3d 101, 106-07 (1st Cir. 2004), MacIsaac clearly had

probable cause to believe that his search would be productive.

Accordingly, his warrantless search was justified under the

automobile exception to the warrant requirement. See United States

v. Bucci, 582 F.3d 108, 117 (1st Cir. 2009) (automobile exception

authorizes warrantless search when agents have probable cause to

believe that evidence will be discovered in the place to be

searched).

b. Verdugo’s Rest Area Admission

Verdugo next argues that his statement to MacIsaac, in

which he admitted that he owned the ringing cell phone, should have

been suppressed because it was obtained in violation of his Miranda

rights. This argument has some bite because Verdugo made the

statement (1) without the benefit of Miranda warnings, (2) in

response to interrogation, (3) after being forcibly removed from

the cab of his truck by multiple officers with drawn guns, and (4)

while in handcuffs that had been left on for several minutes. See

United States v. McCarthy, 475 F.3d 39, 45 (1st Cir. 2007)

(defendant was in custody because he made statement while in

handcuffs); but see United States v. Fornia-Castillo, 408 F.3d 52,

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64 (1st Cir. 2005) (“neither the use of handcuffs nor the drawing

of a weapon necessarily transforms a valid Terry stop into a de

facto arrest”). Nevertheless, we have no need to evaluate the

merits of Verdugo’s argument because the claimed error was harmless

beyond a reasonable doubt. See United States v. Carl, 593 F.3d

115, 119 n.3 (1st Cir. 2010), cert. denied, 130 S. Ct. 2116 (2010)

(“[s]tatements induced in violation of Miranda’s safeguards are

appropriate for analysis under the harmless beyond a reasonable

doubt test”).

As the district court noted, Verdugo repeated his

admission that he owned the ringing cell phone when he signed the

property inventory form at the Northampton barracks after he had

previously waived his Miranda rights at the rest area. Since

Verdugo’s post-Miranda admission was well-documented and

substantially the same as his pre-Miranda admission, the court’s

refusal to suppress the pre-Miranda statement was at most harmless

error unless the court should also have suppressed the post-Miranda

statement. See Tankleff v. Senkowski, 135 F.3d 235, 245-46 (2d

Cir. 1998); Feltrop v. Bowersox, 91 F.3d 1178, 1182 (8th Cir.

1996); Bryant v. Vose, 785 F.2d 364, 367 (1st Cir. 1986) (dictum).

Verdugo seeks to overcome this problem by arguing that

his post-Miranda statement was “tainted” by MacIsaac’s failure to

issue Miranda warnings before he obtained Verdugo’s initial

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admission. The difficulty with this argument is that it cannot be

squared with Supreme Court and First Circuit precedent.

In United States v. Jackson, we explained that,

An earlier, “simple failure to administer the
[Miranda] warnings, unaccompanied by any
actual coercion or other circumstances
calculated to undermine the suspect’s ability
to exercise his free will [does not] so
taint[] the [later] investigatory process that
a subsequent voluntary and informed waiver is
ineffective for some indeterminate period.”

544 F.3d 351, 360 (1st Cir. 2008) (quoting Oregon v. Elstad, 470

U.S. 298, 309 (1985)). Thus, where law enforcement officers have

not engaged in coercive or improper tactics in obtaining an initial

statement, but merely failed to advise a defendant of his Miranda

rights, “determining the admissibility of a subsequent statement is

relatively straightforward. Such a statement is admissible if it

was obtained after the defendant: (1) was advised of his or her

Miranda rights; and, (2) knowingly and voluntarily waived those

rights.” United States v. Marenghi, 109 F.3d 28, 32 (1st Cir.

1997).

Verdugo cites Missouri v. Seibert, 542 U.S. 600 (2004),

in support of his argument that his second statement was “tainted”

by the first because the circumstances surrounding both statements

undermined the effectiveness of the warnings that were given before

the second statement was made. Seibert involved the deliberate use

of a two-step interrogation technique in which the suspect was

questioned first without the benefit of Miranda warnings and then

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was advised of his rights and questioned again after a confession

was obtained. Id. at 605-06. In determining that both statements

should have been suppressed, a plurality of the court focused on

the circumstances under which the statements were made and

identified the “threshold issue” as “whether it would be reasonable

to find that in these circumstances the warnings could function

‘effectively’ as Miranda requires.” Id. at 611-12. Justice

Kennedy supplied the fifth vote for the result in a more narrowly

reasoned opinion that hinged on the admitted fact that the police

had used the two-step interrogation technique “in a calculated way

to undermine the Miranda warning.” Id. at 622 (Kennedy, J.,

concurring). When we recently considered Jackson again following

the district court’s ruling on remand, we declined to determine

whether Seibert’s reach is limited to cases in which the police set

out to subvert a suspect’s Miranda rights because the post-Miranda

statement at issue in Jackson was admissible even under the Seibert

plurality’s more context-sensitive test. United States v. Jackson,

608 F.3d 100, 104 (1st Cir. 2010). We follow the same path here.

In the present case, the district court correctly

concluded that Verdugo’s interrogation at the rest area differed

substantially from the two-step interrogation technique that the

Supreme Court condemned in Seibert. In Seibert, the defendant was

awakened in the middle of the night, arrested, transported to a

police station, and questioned for 30 to 40 minutes until she

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confessed. Officers then gave the defendant a 20-minute break,

administered Miranda warnings, and immediately confronted her with

her pre-warning statements. See Seibert, 542 U.S. at 604-05.

Here, in contrast, Verdugo was asked only a limited number of

questions before he was read his Miranda rights, the bulk of the

post-Miranda questioning occurred at a different location than the

pre-Miranda questioning, and Verdugo made his second statement and

signed the Property Inventory form over an hour after he first

admitted to MacIsaac that the ringing cell phone was his. See

United States v. Materas, 483 F.3d 27, 33 (1st Cir. 2007) (finding

a subsequent confession untainted where police asked the defendant

only one question before reading him his Miranda rights, at another

location, fifteen minutes later). These circumstances do not call

into serious question the effectiveness of the Miranda warnings

that Verdugo received before he made his second admission. The

district court therefore committed no error in refusing to suppress

Verdugo’s post-Miranda statements based on Seibert.

Verdugo also claims that his post-Miranda statement was

involuntary even if it was not tainted by his first statement. The

circumstances surrounding Verdugo’s questioning, however, contain

no traces of the “brutality, [p]sychological duress, threats, [or]

unduly prolonged interrogation” that courts have previously found

when they have concluded that statements were involuntarily made.

See Jackson, 608 F.3d at 102-03; see also Colorado v. Connelly, 479

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U.S. 157, 167 (1986) (only admissions procured by coercive official

police tactics are to be excluded as involuntary); Greenwald v.

Wisconsin, 390 U.S. 519 (1968) (confession involuntary where

defendant was interrogated for over 18 hours without food, sleep,

or necessary medication); Beecher v. Alabama, 389 U.S. 35 (1967)

(confession coerced where police held a gun to defendant’s head and

interrogated him while he was in the hospital and under the

influence of morphine); Payne v. Arkansas, 356 U.S. 560 (1958)

(confession coerced where defendant was held incommunicado for

three days with limited food and threatened with attack from a

lynch mob). Verdugo made his post-Miranda admission and signed the

inventory form in an open room where he was no longer handcuffed,

and he was not subject to prolonged questioning, threats, or

duress. Thus, the evidence simply does not support Verdugo’s claim

that his post-Miranda statement was involuntary. See United States

v. Byram, 145 F.3d 405, 408 (1st Cir. 1998) (finding no evidence of

coercion where police did not threaten violence or serious

retaliation, the questioning was not prolonged, and the surrounding

atmosphere “appear[ed] to have been benign”).1

1
Verdugo also argues that the Miranda warnings he received at
the rest area do not cover his admission at the Northampton
barracks, but he provides no legal analysis or case law to support
this proposition. Accordingly, we deem this argument waived
because it has not been adequately developed on appeal. United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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 c. Verdugo’s Pomona Admission

Verdugo argues that the court should have suppressed the

statement that he made when he was arrested because the government

failed to prove that he was advised of his Miranda rights before he

made the statement. He also faults the court for failing to

investigate whether his statement was voluntarily made. Neither

argument has merit.

Verdugo’s first argument challenges the district court’s

decision to credit the testimony of Agents Naylor and Cardello, who

both claimed during the suppression hearing that Verdugo waived his

Miranda rights and agreed to speak with them when he was arrested.

This argument challenges a credibility assessment made by the

district court and such matters are reviewed only for clear error.

United States v. Andrade, 551 F.3d 103, 109 (1st Cir. 2008).

Verdugo cannot possibly succeed under this deferential standard,

because the district court had ample evidentiary support for its

determination that Verdugo was advised of his Miranda rights.

Verdugo’s second argument fares no better. The court had

no reason to make specific findings on the issue of voluntariness

because Verdugo based his suppression argument solely on the

agents’ alleged failure to administer Miranda warnings. In any

event, the only evidence in the record that in any way supports

Verdugo’s contention that his statement was involuntary comes from

his own testimony, which the district court reasonably found to be

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incredible. Thus, the district court did not err in refusing to

suppress Verdugo’s Pomona admission.

2. Fernández

The only suppression issue that Fernández pursues on

appeal is his claim that the district court improperly refused to

suppress his statement to Arnold at the Charlton Police Barracks.

First, he contends that the court should have excluded his

statement because the government failed to prove during the

suppression hearing that Fernández affirmatively waived his Miranda

rights before responding to agents’ questions. Next, he claims

that the court violated his right to due process by failing to rule

on his motion to suppress until the third day of trial. We address

each argument in turn.

a. Waiver Claim

Fernández does not take issue with the district court’s

findings that Arnold read Fernández his Miranda rights and that

Fernández understood his rights, nor does he dispute the court’s

determination that the record contains no evidence that “the

[d]efendant’s decision to answer . . . questions was influenced by

intimidation, coercion, or deception[] . . .” Fernández-Roque,

2008 WL 2148750, at *3. Instead, he rests his argument entirely on

the fact that the government did not prove at the suppression

hearing that Fernández affirmatively waived his Miranda rights

before he responded to questions. The problem with this argument

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is that it fails to take account of the fact that the court relied

on Arnold’s trial testimony that Fernández affirmatively waived his

Miranda rights when it ultimately upheld its decision to admit

Fernández’s statement. Fernández-Roque, 2008 WL 2845044, at *4.

Because Fernández does not challenge the district court’s decision

to rely on trial testimony to fill what Fernández claims is a gap

in the suppression hearing record, he is in no position to argue

that suppression is required because of the claimed gap.2

b. Timing Claim

Fernández also presents an unconvincing claim that the

district court committed reversible error in failing to rule on his

motion to suppress before trial. Because Fernández raises this

claim for the first time on appeal, we review it for plain error.

United States v. Rodriguez-Lozada, 558 F.3d 29, 38 (1st Cir. 2009).

To satisfy the plain error standard, Fernández “must show an error

that was plain (i.e., obvious and clear under current law),

prejudicial (i.e., affected the outcome of the district court

proceedings), and that seriously impaired the fairness, integrity,

or public reputation of the judicial proceedings.” United States

2
Because the district court based its ruling on evidence in
the trial record that Fernández affirmatively waived his Miranda
rights, we need not consider whether his statement could have been
admitted even in the absence of an affirmative waiver. See
Berghius, 130 S. Ct. at 2264 (recognizing that “a suspect who has
received and understood the Miranda warnings, and has not invoked
his Miranda rights, waives the right to remain silent by making an
uncoerced statement to the police.”).

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v. Rivera Calderon, 578 F.3d 78, 95 (1st Cir. 2009), cert. denied,

130 S. Ct. 1107 (2010) (quoting United States v. Griffin, 524 F.3d

71, 76 (1st Cir. 2008)). Although Fernández points to the fact

that Fed. R. Crim. P. 12(d) ordinarily requires a motion to

suppress to be resolved before trial, he cites no case law to

support his claim that a delayed suppression ruling can give rise

to a due process violation. This failure alone has doomed other

claims that were subject to plain error review. See, e.g., United

States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008); United States

v. Carballo-Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007). Moreover,

Fernández has failed to present a persuasive argument that he was

prejudiced by the timing of the court’s suppression ruling.

Without evidence of prejudice, Fernández simply cannot succeed on

a claim that is subject to plain error review. See United States

v. Perez-Cruz, 558 F.3d 50, 53 (1st Cir. 2009), cert. denied, 130

S. Ct. 183 (2009).

B. Trial Issues

1. Interpretations of Intercepted Conversations

Verdugo cites 32 instances in which he claims that the

district court erred in allowing Naylor to testify concerning his

interpretation of words and phrases used by the conspirators during

their intercepted conversations. The only time Verdugo actually

objected to a proposed interpretation, however, was in response to

Naylor’s innocuous explanation that he had initially misinterpreted

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Verdugo’s statement about seeing “some guys” at the rest area to

mean that Verdugo had spotted the surveillance team. Verdugo

otherwise failed to object to Naylor’s interpretations and, when

the court called counsel to the bench to express concern as to why

counsel was not objecting, counsel informed the court that “[he]

just wanted the court to know [his] reason was [that he] didn’t

want to limit [his] cross-examination with respect to these phone

calls because [he] d[id] intend to question [Naylor] about certain

calls.” The government argues that counsel’s decision not to

object to Naylor’s interpretations results in a waiver of Verdugo’s

right to challenge the interpretations on appeal. We agree.

As we have noted, claims that are not preserved in the

trial court typically are reviewed for plain error. United States

v. Medina, 427 F.3d 88, 91 (1st Cir. 2005). An intentional

relinquishment of a claim, however, results in a complete waiver of

the right to raise the claim on appeal. Id. (finding that

defendant waived his right to object to the admission of physical

evidence on appeal where his counsel told the judge at a bench

conference during trial that he had “no objection to [the evidence]

coming in”); see also United States v. Washington, 434 F.3d 7, 11

(1st Cir. 2006) (defense counsel waived the right to object to the

admission of telephone calls at trial where he made the “deliberate

strategic choice” to play them to the jury to discredit the

prosecution’s chief witness). Here, Verdugo’s counsel made a

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tactical choice not to object to Naylor’s interpretations in order

to lay the groundwork for later cross-examination. Having made

this choice, Verdugo cannot now challenge the court’s failure to

exclude Naylor’s interpretations on appeal.

2. Videotape of Verdugo’s Interrogation

Verdugo next claims that the district court improperly

barred him from using the videotape of his interrogation at the

Pomona police station to impeach Naylor’s trial testimony. Naylor

testified on direct examination about the statement Verdugo made

when he was arrested, but the subject of the videotaped statement

did not come up until cross-examination, when the following

exchange occurred:

Q. He [Verdugo] didn’t admit to anything
[during the videotaped statement], either, am
I correct sir?

A. I don’t know – he didn’t admit to it. He
said he wanted a lawyer. He said, the only
thing I can talk about is against myself. I’m
not sure if he admitted it. But I know I
talked to him about what we talked about on
the scene. So I don’t know exactly what was
admitted to on tape again. I don’t really
remember. But I remember speaking to him. He
didn’t deny what I talked about on the street,
if that’s what you mean[,] sir.

(Trial Tr. vol. 2, 111, Apr. 8, 2008.)

At that point, Verdugo’s counsel asked the court for

permission to play the videotape, arguing that the tape was

admissible because it contradicted Naylor’s testimony. The court

denied counsel’s request because it concluded that “what [Naylor]

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. . . said about [the] interview is not inconsistent with what the

video shows.” (Id. at 120.) We agree with the district court.

A party ordinarily may introduce extrinsic evidence to

impeach testimony by contradiction if the extrinsic evidence

concerns a subject that is not collateral to the issues being

tried. United States v. Cruz-Rodriguez, 541 F.3d 19, 30 (1st Cir.

2008), cert. denied, 129 S. Ct. 1017 (2008). Here, however, the

videotape was properly excluded whether or not it was collateral

because it simply did not contradict Naylor’s testimony. The only

portion of the videotape that arguably bears on the issue of

Naylor’s credibility is the following exchange:

Naylor: I know we spoke for a few minutes on
the street. And you said that you never
brought any money back . . . that time. And
were talking like that. I just wanna, you
know . . . so I understand we talked about
that on the street. And we talked about um. .
[.] the 29 kilos that you brought there.
That’s the stuff we talked about on the
street. We’re not going to talk about this
now, do you understand. Cause you’re saying
now you need a lawyer. But on the street when
you were talking to me about that . . [.] um,
um . . [.] that’s why you’re being brought up
here. Do you understand? That’s why we’re
here from Rhode Island. You understand
that[,] correct?

Verdugo I don’t know what you’re talking
about.

In responding to Naylor, Verdugo disclaimed knowledge about their

prior discussion, but he did not deny his alleged role in the

conspiracy. Thus, the videotape is consistent with Naylor’s

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testimony that Verdugo “didn’t deny what [Naylor] talked about on

the street.”

Verdugo also incorrectly claims for the first time on

appeal that the court should have admitted the videotape pursuant

to the rule of completeness embodied in Fed. R. Evid. 106. The

short answer to this claim is that Rule 106 does not apply to

testimony about unrecorded oral statements such as the one that

Verdugo gave to Naylor and Cardello when he was arrested. United

States v. Lopez-Medina, 596 F.3d 716, 734 (10th Cir. 2010). In any

event, while the district court retained substantial discretion

under Fed. R. Evid. 611(a) to apply the rule of completeness to

oral statements, id., Naylor cites no case law that supports the

use of the rule under these circumstances. The rule of

completeness ordinarily comes into play when a statement is offered

to explain another statement that is being admitted into evidence.

See Fed. R. Evid. 106 advisory committee’s note (“The rule is based

on two considerations. The first is the misleading impression

created by taking matters out of context. The second is the

inadequacy of repair work when delayed to a point later in the

trial.”). It does not ordinarily allow otherwise inadmissible

evidence to be used to create doubt as to whether the admitted

statement was ever made. Accordingly, the district court did not

commit plain error in refusing to admit the videotape under the

rule of completeness.

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 3. The Mere Presence Jury Instruction

Fernández faults the district court for delivering its

own jury instruction explaining the concept of “mere presence”

rather than the instruction that Fernández proposed.3 This type of

claim can succeed only in the “relatively rare case” where “the

requested instruction was (1) substantively correct; (2) not

substantially covered elsewhere in the charge; and (3) concerned a

3
Fernández requested the following jury instruction:

Mere presence at the scene of a crime or mere association
with the co-conspirators will not themselves support a
conspiracy conviction. Mere presence at the scene of the
crime and knowledge that a crime is being committed are
also not sufficient to establish a defendant’s guilt.

The district court declined to charge the jury as he requested, and
instead issued the following instructions:

Mere presence at the scene of a crime is not alone
enough, but you may consider it among other factors.
Intent may be inferred from the surrounding
circumstances.

. . .

[M]ere presence at the scene of a crime, or merely
knowing that a crime is being committed or is about to be
committed, is not sufficient conduct to find the
defendant committed that crime. However, the law
recognizes a difference between mere presence and
culpable presence in the context of drug trafficking
activities. While mere presence is not sufficient to
base criminal charges, a defendant’s presence at the
point of a drug sale taken in light of attendant
circumstances can constitute strong evidence of
complicity. Thus[,] you must evaluate the circumstances
of this case in order to determine the quality of the
defendant’s presence at a location where drugs are found.
This will assist you in determining whether the defendant
was merely present or culpably present.

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sufficiently important point that the failure to give it seriously

impaired the defendant’s ability to present his or her defense.”

United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009) (quoting

United States v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001)). We

review the instruction given “not in isolation but in the context

of the entire charge” in determining whether the district judge

clearly conveyed the relevant legal principles, and remain “mindful

that the district court has considerable discretion in how it

formulates, structures, and words its jury instructions.” Id.

The district court’s own “mere presence” instruction was

an entirely accurate recitation of First Circuit case law that more

than adequately explained the concept to the jury, particularly

when viewed within the context of the entire jury charge. Fernández

alleges that the district court’s instruction diminished the

importance of his “willful participation” in the conspiracy.

“Willful participation,” however, was addressed in great detail

elsewhere in the jury charge; in fact, the court instructed the

jury as to the government’s burden of proving that Fernández

“willfully” joined the conspiracy immediately after it explained

the concept of “mere presence.” Thus, the court did not err in

refusing to give Fernández’s mere presence instruction because the

court’s own instruction adequately covered the issues that

Fernández sought to cover with his instruction.

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 III.

For the foregoing reasons, we affirm the district court’s

denial of defendants’ motions to suppress. We further determine

that Verdugo waived his right to object to Naylor’s interpretive

testimony, that the court properly excluded Verdugo’s videotaped

statement, and that the court’s “mere presence” instruction was a

suitable substitute for Fernández’s proposed instruction on the

subject.4 Both defendants’ convictions are affirmed.

4
Verdugo also argues that (1) he was denied the effective
assistance of counsel, (2) his sentence of 151 months was
unreasonable, (3) the court’s instruction that the jury could find
Verdugo guilty if the object of the conspiracy was either to
possess cocaine with intent to distribute or to distribute cocaine
was improper because the indictment was phrased in the conjunctive,
and (4) the verdict was not supported by substantial evidence.
These arguments do not require extended discussion. Verdugo’s
ineffective assistance claim is premature. See United States v.
Mathis, 413 F.3d 139, 155 (1st Cir. 2005). He has not given this
court sufficient grounds to second-guess the district court’s
sentencing judgment. See United States v. Morales-Machua, 546 F.3d
13, 25 (1st Cir. 2008) (explaining that a defendant carries a
“heavy burden” when claiming on appeal that his sentence is
unreasonable). The court’s multiple-object conspiracy instruction
is unassailable. See United States v. Gerhard, Nos. 08-2056, 08-
2300, 08-2450, 2010 WL 2978098, at *20 (1st Cir. July 30, 2010)(“we
have routinely affirmed the use of the conjunctive in indictments
followed by the use of the disjunctive in jury instructions”).
Finally, as the record demonstrates, abundant evidence was produced
at trial to support the verdict.

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