United States Court of Appeals
For the First Circuit
No. 05-1990
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS DIAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Leslie W. O'Brien for appellant.
Andrew E. Lelling, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.
July 19, 2007
HOWARD, Circuit Judge. Carlos Diaz appeals his
conviction on charges of possessing and conspiring to distribute
the controlled drug ecstasy. Diaz claims that (1) the district
court should have suppressed evidence gleaned from the warrantless
seizure of his cell phone, and (2) unexpected testimony by a
government witness that Diaz had illegally entered the United
States necessitated a mistrial. We affirm.
I.
Just after midnight on October 16, 2001, three agents of
the Drug Enforcement Agency, accompanied by uniformed officers from
the local police department, arrived at an apartment in Lynn,
Massachusetts. The officers were led there by Ellis Martinez, who
had been arrested earlier that night for selling five hundred
ecstasy tablets to an undercover DEA agent, Todd Prough. Martinez
said he had acquired the tablets at the apartment that day from a
man known to him as "Memello." Martinez further recounted that he
had not paid Memello for the ecstasy, but had received it "on
consignment," meaning that he was expected to sell it and repay
Memello out of the proceeds that same night. Martinez also
provided Prough with a brief physical description of both Memello
and his vehicle, a gold Honda.
During Martinez's interrogation, his cell phone
continually rang, displaying a number he had previously identified
as Memello's. Eventually, Prough and the other officers conducting
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the interrogation instructed Martinez to answer one of Memello's
calls, which Prough monitored and recorded. In this call, Martinez
claimed to have the money to repay Memello, and promised to deliver
it to him shortly. Prough, joined by other law enforcement
personnel, then proceeded to Memello's apartment to arrest him.
Prough later explained that he did not seek an arrest warrant due
to the difficulty of contacting a magistrate at the late hour and
out of a concern that the attendant delay would arouse Memello's
suspicions as to Martinez's whereabouts, causing Memello to destroy
evidence or to flee.
The officers approached the apartment, located on the
second-floor of a multifamily house, by way of a back staircase.
A gold Honda was parked outside. The officers' badges were
visible, but their weapons were not drawn. One of the local
officers knocked on the door. When a woman opened it, the officer
identified his group as the police and asked to come in and talk to
her. The woman, later identified as Diaz's wife, Amanda Burgos,
responded by moving away from the door and gesturing to the
officers to enter.
Once inside the apartment, Prough observed a man sitting
in the kitchen and asked him for his name. The man identified
himself as Carlos Diaz. Prough recognized him as Memello from his
appearance, which fit the description provided by Martinez, and his
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voice, which Prough had heard while listening to their cell phone
conversation. Diaz was arrested and removed from the apartment.
Prough then asked Burgos whether the apartment contained
any weapons or drugs; she said no. He asked her for permission to
search the apartment; she said yes. While another officer was
leaving the apartment to obtain a form for Burgos to sign to
consent to the search, Prough noticed a cell phone on the coffee
table in front of her. Burgos indicated, in response to an inquiry
from Prough, that the phone belonged to her husband, Diaz. Prough
determined that the phone was the same one that had been used to
place the call to Martinez earlier that evening.1 Prough then
seized the phone. After Burgos signed the consent form, another
DEA agent, Michael O'Shaughnessy, examined the phone and determined
that it had been used to place a call to Martinez minutes before
the authorities arrived at the apartment that night.
Diaz was transported to the police station in Woburn,
Massachusetts, where he was advised of and waived his Miranda
rights. When Prough told Diaz that he had been arrested for
trafficking in ecstasy, Diaz remarked, "What a mess I got myself
into. You got me for being a fool." He proceeded to explain that
1
Prough could not recall whether he made this determination by
using Diaz's phone to call his own phone (so that Diaz's number
would appear through his caller identification feature), by using
his phone to call Diaz's number (so that the phone would ring), or
by activating a function on the phone itself that caused it to
display its number.
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he had entered the United States illegally some fifteen years
prior. Under further interrogation from Prough, Diaz admitted that
he served as a middleman between buyers and sellers of ecstasy,
funneling approximately 1,000 tablets each week to Martinez and his
principal, Tomas Cubilette. Diaz further confessed to providing
Martinez with the five hundred ecstasy tablets he had sold to
Prough that day. Diaz's confession was not video- or tape-
recorded, however, and he was never asked to put it in writing.
Before trial, Diaz moved to suppress the evidence seized
from the apartment and his confession as the fruits of an illegal
warrantless entry and arrest. The district court denied the motion
in a written memorandum and order issued after an evidentiary
hearing. The court ruled that (1) Burgos voluntarily gave her
consent to the officers' entry into the apartment, (2) the officers
had probable cause to arrest Diaz on sight, and (3) the cell phone
was lawfully seized under the "plain view" exception, see Horton v.
California, 496 U.S. 128, 136-37 (1990).2
At trial, Prough served as the government's principal
witness against Diaz, relating the substance of his confession as
well as the aforementioned events of the night of October 15. The
government also submitted toll records showing multiple calls
2
The district court also made the alternative rulings that (1)
exigent circumstances permitted the warrantless entry, and (2) the
seizure of the cell phone was within the scope of the consent
Burgos had given to search the apartment. For reasons that will
appear, we need not pass upon those rulings.
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between Martinez's cell phone and Diaz's cell phone prior to Diaz's
arrest that night, and similar activity on a number of previous
occasions when Prough had purchased, or attempted to purchase,
ecstasy from Martinez. Diaz's cell phone was also introduced into
evidence, accompanied by testimony from O'Shaughnessy as to the
call from the phone to Martinez just before the authorities arrived
at Diaz's apartment.
In describing Diaz's confession, Prough testified that
Diaz had admitted to entering the United States illegally. Diaz
immediately made an objection, which the district court sustained.3
At the end of that day of trial, Diaz moved for a mistrial on the
basis of this testimony, which he characterized as irrelevant and
prejudicial. Though the government opposed the motion, it took
"full responsibility" for Prough's testimony: the prosecutor
acknowledged that he could not recall whether he had instructed
Prough not to mention Diaz's immigration status, despite assuring
defense counsel before trial that he would do so.4
3
Diaz did not move to strike the testimony because, as defense
counsel later explained, he did not want to call the jury's
attention to it.
4
Diaz does not argue that the prosecutor's handling of the
situation amounted to intentional misconduct, e.g., that the
prosecutor knowingly failed to tell Prough not to mention the
subject in hopes that he would. Cf. United States v. Sepulveda, 15
F.3d 1161, 1185 (1st Cir. 1993) (considering claim that government
violated due process by purposely calling incompetent witness).
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The district court denied the motion, concluding that the
testimony would not "materially affect" the outcome of the trial,
but offered to instruct the jury to disregard it. Diaz, however,
did not take the court up on its offer, believing that an
instruction would only highlight Prough's statement. The jury
convicted Diaz on both the possession and conspiracy charges.
II.
A.
Diaz appeals from the denial of his motion to suppress
his cell phone as the spoils of an unconstitutional warrantless
entry and seizure. He does not, however, separately question the
district court's conclusion that the officers had probable cause to
arrest him and that his confession was therefore legally obtained.
In passing on a district court's decision on a motion to suppress,
we scrutinize rulings of law de novo, but review findings of fact
for clear error only. E.g., United States v. McCarthy, 475 F.3d
39, 43 (1st Cir. 2007).
The Fourth Amendment "prohibits the police from making a
warrantless and nonconsensual entry into a suspect's home in order
to make a routine felony arrest." Payton v. New York, 445 U.S.
573, 576 (1980). Nevertheless, "[t]he Fourth Amendment recognizes
a valid warrantless entry . . . when police obtain the voluntary
consent of an occupant who shares, or is reasonably believed to
share, authority over the area in common with a co-occupant who
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later objects to the use of evidence so obtained." Georgia v.
Randolph, 126 S.Ct. 1515, 1518 (2006). When faced with such an
objection, the government has the burden to show by a preponderance
of the evidence that the consent was voluntarily given. United
States v. Marshall, 348 F.3d 281, 285-86 (1st Cir. 2003).
The district court found that Diaz's wife, Burgos, had
voluntarily consented to the arresting officers' entry into the
apartment. Diaz does not challenge this result per se. Instead,
he contends that the district court erroneously placed the burden
on him to prove that Burgos did not consent. He bases this charge
on a statement in the court's order on the motion to suppress:
The problem in this case is that only one version of what
happened at the threshold of the door to the Burgos-Diaz
apartment was presented to me--that of [Special Agent]
Prough. Burgos did not testify. And while parts of the
Prough testimony troubled me, I have no basis to conclude
that Burgos' consent was not 'freely given' within the
meaning of the law.
We do not read this statement as placing the burden of proving
voluntary consent on Diaz. Rather, the passage expresses the
court's conclusion that Prough's testimony, despite its faults,
sufficed to satisfy the government's burden in the absence of any
contradictory evidence. We read the statement, in other words, as
reflecting Diaz's failure to challenge the government's proof of
voluntary consent, not condemning his failure to prove otherwise in
the first instance.
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Indeed, elsewhere in its order, the district court
specifically noted that the warrantless entry "was presumptively
illegal unless the government can justify exceptions to the Payton
rule" and that the law "obligates the government to prove that
consent was, in fact, freely and voluntarily given." (internal
quotation marks omitted). We are generally skeptical of claims
that a district court professed to apply one rule, but went on to
apply another; "[a]fter all, an appellate tribunal ought not
lightly assume that a federal trial judge is indulging in the
adjudicatory equivalent of a shell game." Lenn v. Portland Sch.
Comm., 998 F.2d 1083, 1088 (1st Cir. 1993) (collecting cases). We
see no reason to dispense with such skepticism here. We conclude
that the district court, in word and in deed, correctly placed the
burden of proving voluntary consent on the government.
Diaz also claims that, even if the district court
properly found that Burgos validly consented to the officers'
warrantless entry, she did not validly consent to their warrantless
search and seizure. Specifically, Diaz argues that Burgos lacked
the authority to consent to either the search of the apartment or
the seizure of the cell phone. We need not reach this issue,
however. In addition to finding that Burgos did consent to such a
search, the district court ruled that the cell phone was legally
seized under the "plain view" exception to the warrant requirement.
This conclusion appears sound, but, in any event, Diaz does not
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question it on appeal.5 We affirm the district court's denial of
the motion to suppress, insofar as it challenged the seizure of the
cell phone, on the basis of the "plain view" exception.
B.
Diaz also challenges the denial of his motion for a
mistrial based on Prough's testimony that Diaz had admitted
entering the United States illegally. Because "whether to declare
a mistrial speaks to the informed discretion of the district
court," we review this decision for abuse of that discretion only.
United States v. Keene, 287 F.3d 229, 233 (1st Cir. 2002). Indeed,
"this precept possesses particular force when, as now, a motion for
mistrial is based on a claim that some spontaneous development at
trial may have influenced the jury in an improper manner." United
States v. Pierro, 32 F.3d 611, 617 (1st Cir. 1994).
5
To the extent that he argues that the cellular telephone's
assigned number was illegally obtained apart from the seizure of
the telephone, Diaz did not raise this claim in a timely and full
fashion before the district court; review is thus for plain error
only. See, e.g., United States v. Burnette, 375 F.3d 10, 16 (1st
Cir. 2004) (reviewing suppression argument not raised below for
plain error only), vacated on other grounds, 543 U.S. 1181 (2005).
As we have noted, it is unclear whether the method by which the
information was gleaned constituted a search. In any event, as the
government argues unchallenged, probable cause existed to search
for the telephone number, and it inevitably would have been
discovered, either in plain view or by search conducted pursuant to
a warrant. There was no plain error in not suppressing the
assigned telephone number. See, e.g., United States v. Procopio,
88 F.3d 21, 27 (1st Cir. 1996) (holding that evidence is admissible
if shown by preponderance that it inevitably would have been
discovered by legal means).
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We accept the notion, as does the government, that
evidence of a defendant's illegal immigration status carries with
it the potential for prejudice. See United States v. Amaya-
Manzanares, 377 F.3d 39, 45 (1st Cir. 2004). We agree with the
district court, however, that such potential went unrealized here.
First, the government's case against Diaz was sturdy,
with his full confession serving as its keystone. While Diaz
points out that the confession was not transcribed, whatever doubt
this casts on its value was substantially dispelled by a raft of
corroborating evidence, including the toll records of calls to
Martinez corresponding with the occasions on which he had sold
ecstasy to Prough. See, e.g., United States v. Fontanez, 291 F.3d
88, 89 (1st Cir. 2002). We have observed that such strong
independent evidence of guilt tends to lessen the effect of an
improper comment by a witness, making a mistrial unnecessary. See
United States v. DiSanto, 86 F.3d 1238, 1249 (1st Cir. 1996);
United States v. Rullan-Rivera, 60 F.3d 16, 18 (1st Cir. 1995);
United States v. Bello-Perez, 977 F.2d 664, 672 (1st Cir. 1992).
Second, after Prough stated that Diaz had admitted
entering the country illegally, that fact was never mentioned
again, either in the balance of Prough's lengthy testimony or in
the prosecutor's closing arguments. The isolated nature of the
offending remark further cuts against any need for a mistrial. See
United States v. Lee, 317 F.3d 26, 34-35 (1st Cir. 2003).
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"Declaring a mistrial is a last resort, only to be
implemented if the taint is ineradicable, that is, only if the
trial judge believes that the jury's exposure to the evidence is
likely to prove beyond realistic hope of repair." Sepulveda, 15
F.3d at 1184. Here, the district court reasonably believed
otherwise, based on the fleeting nature of Prough's remark about
Diaz's immigration status and the strength of the government's
independent evidence. Denying the motion for a mistrial, then, was
not an abuse of the district court's discretion.
III.
For the foregoing reasons, Diaz's conviction is affirmed.
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