United States v. Melendez-Santiago

United States Court of Appeals
For the First Circuit

No. 08-2394

UNITED STATES OF AMERICA,

Appellee,

v.

ELKIN MELÉNDEZ-SANTIAGO, a/k/a CARLOS, a/k/a CALICHE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.

Jorge L. Armenteros-Chervoni, for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, were on brief, for appellee.

June 30, 2011
 LYNCH, Chief Judge. After a twenty-eight-day trial in

2007 a jury found Elkin Meléndez-Santiago, one of twelve indicted

co-conspirators, guilty of conspiracy to import five or more

kilograms of cocaine and one or more kilograms of heroin, as well

as actual importation of five or more kilograms of cocaine, as part

of a massive cocaine and heroin importation organization. Only one

other defendant went to trial and he was also convicted. The

remainder pled guilty.

In the conspiracy, Meléndez provided cash to co-

conspirators to cover expenses for some drug smuggling operations

and purchased cocaine and heroin imported into Puerto Rico for

further distribution. Millions of dollars worth of drugs were

imported. During one importation attempt in 2004, federal officers

who had been tipped off to the drugs' arrival seized the drugs

after a shootout with some of Meléndez's co-conspirators. The

district court found it was known or foreseeable that firearms were

being carried in furtherance of the conspiracy, justifying a

sentence enhancement.

Meléndez was a cocaine addict who used cocaine daily,

United States v. Melendez Santiago, 544 F. Supp. 2d 76, 83 (D.P.R.

2007) (Melendez II), but he had no prior criminal record. He was

sentenced to 360 months' imprisonment, which was less than the life

sentence advised by the U.S. Sentencing Guidelines.

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 His appeal argues two points. First, he argues the

district court committed reversible error in not suppressing

evidence of conversations recorded in two Title III wiretaps

because the affidavits in support of the wiretaps did not

sufficiently explain why traditional investigative procedures were

inadequate, necessitating wiretaps, see 18 U.S.C. § 2518(1)(c),

(3)(c), and because the affidavits contained misleading

information. He argues that the district court should have held a

Franks hearing to permit him to establish that the affidavits

included misleading information and that without such information,

the affidavits would not have sufficed to establish probable cause

for the wiretaps. See Franks v. Delaware, 438 U.S. 154, 155-56

(1978). Second, Meléndez argues the court erred in denying a

second motion to suppress his own statements and confession to

agents while in custody as involuntary under the Fifth Amendment or

in violation of his Sixth Amendment right to counsel. The district

court issued careful and helpful opinions on both motions. See

Melendez II, 544 F. Supp. 2d 76 (denying motion to suppress

statements); United States v. Melendez-Santiago, 447 F. Supp. 2d

144 (D.P.R. 2006) (Melendez I) (denying motion to suppress wiretap

recordings). We reject Meléndez's arguments and affirm.

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 I. The Title III Wiretap

A. Necessity

The initial determination as to compliance with the

stringent standards for issuing a wiretap authorization, 18 U.S.C.

§ 2518(1), is made by the judge to whom the application is made.

See United States v. Nelson-Rodriguez, 319 F.3d 12, 32 (1st Cir.

2003) (explaining standard and procedure for wiretap warrants). At

this later stage, appellate review of that authorization is not de

novo, but deferential. We "decide if the facts set forth in the

application were minimally adequate to support the determination

that was made." Id. (quoting United States v. Ashley, 876 F.2d

1069, 1074 (1st Cir. 1989)) (internal quotation marks omitted).

Here, two wiretap authorizations resulted from

applications dated November 23 and December 9, 2004, both supported

by sworn affidavits by FBI agent Jose Mena. Both applications

targeted certain cell phone numbers and were approved by a district

court judge. These cell phone numbers were used by the conspiracy

leader, Luis Alfredo De La Rosa-Montero, also known as "Luis

Viagra" or "El Compadre," to coordinate the drug conspiracy.

In order to be approved, the applications needed to show

what is commonly referred to as the "necessity" of resort to

wiretaps. United States v. Martinez, 452 F.3d 1, 4 (1st Cir.

2006). To make this showing, wiretap applications must provide "a

full and complete statement as to whether or not other

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investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be too

dangerous." 18 U.S.C. § 2518(1)(c); see also id. § 2518(3)(c)

(judge's duty to evaluate showing of necessity). In United States

v. Villarman-Oviedo, 325 F.3d 1 (1st Cir. 2003), we interpreted

§ 2518(1)(c) "to mean that the statement should demonstrate that

the government has made 'a reasonable, good faith effort to run the

gamut of normal investigative procedures before resorting to means

so intrusive as electronic interception of telephone calls.'" Id.

at 9 (quoting United States v. Hoffman, 832 F.2d 1299, 1306-07 (1st

Cir. 1987)). In such a statement, "[i]t is not necessary . . . to

show that other methods have been entirely unsuccessful." Id.

Our reading of the affidavits disproves Meléndez's

contentions that they were insufficient to support issuance of the

wiretap authorizations. Indeed, they were better than minimally

adequate. The November 23 affidavit contained the available

identifying information known about the conspirators, all Dominican

or Puerto Rican nationals. The affidavit also described how three

confidential sources and one confidential informant had at times

aided the investigation, providing information about those who were

working in the conspiracy and about particular prior shipments,

information that had led to successful arrests and drug seizures.

The affidavit described in twenty-five detailed pages the

conversations and interactions the sources and informant had with

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De La Rosa, some of which were recorded by the sources and some of

which were verified when transactions were interrupted and

smugglers arrested by federal officials. The affidavit also

described what information had been gleaned from existing pen

register and trap and trace analysis of De La Rosa's phone numbers.

The November 23 affidavit also described the limited

success of efforts to conduct physical surveillance of the

conspiracy leader De La Rosa. Physical surveillance was especially

difficult in St. Thomas, where De La Rosa lived, because the

streets were narrow and foreigners easily spotted. De La Rosa and

other conspirators stayed in areas frequented by other Dominican

nationals who were part of the same criminal subculture. The

conspirators were wary of surveillance and they, in fact, mounted

vigilant counter-surveillance. The conspirators did not use their

real names and distrusted others not like them. Federal agents

either mounting surveillance or attempting to infiltrate the

organization undercover who were not members of that subculture

would be easily spotted, would not be trusted by other members of

the conspiracy, and would consequently be at great risk.

Importantly, at the time of the wiretap application, one of the

confidential sources had been missing for five months and was

presumed dead; another had been threatened with death and was no

longer trusted by members of the organization.

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 The information from sources other than surveillance was

also constrained. The affidavit explained why traditional

investigative techniques that had not been used--a grand jury

investigation, interviews with co-conspirators or their associates,

or execution of search warrants--were, particularly given the

limited information known about the co-conspirators' identities and

roles, likely to tip off the co-conspirators as to the developing

investigation without yielding much helpful information. Pen

registers and trap and trace records were already being used and

would continue to be used, but gleaned only limited information

about the cell phones being used.

The December 9 application sought wiretap authorization

for another, new cell phone number used by De La Rosa. The

supporting affidavit was similar in its level of detail to the

first, related affidavit.

The affidavits' exhaustive explanation of what facts were

known, what details remained unknown, what investigative techniques

had been used and what techniques were likely to be unhelpful in

the specific context of this particular conspiracy clearly

constituted "a full and complete statement as to whether or not

other investigative procedures have been tried and failed or why

they reasonably appear to be unlikely to succeed if tried or to be

too dangerous." 18 U.S.C. § 2518(1)(c). The affidavits certainly

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supported the determination to authorize the wiretaps. See Nelson-

Rodriguez, 319 F.3d at 32-33.

B. Alleged Misleading Information

Meléndez argues that the affidavits failed to disclose

that the agent who signed them was himself of Dominican origin, as

was one of the confidential sources, and that they understated the

scope of that source's knowledge about the internal workings of the

criminal conspiracy. These arguments are in service of Meléndez's

hypothesis that someone of Dominican origin could easily have been

slipped into the organization as an undercover agent, and that

alternatively, the confidential source must already have had

sufficient knowledge about the conspiracy's organization, both

facts obviating any need for wiretaps.

Meléndez takes it one step further and argues that

because these facts were so obviously material, the affidavit

misled the district court judges who authorized the wiretaps into

authorizations they would not otherwise have granted. See Franks,

438 U.S. at 171-72 (holding that if "deliberate falsity or reckless

disregard" for the truth in a warrant affidavit are specifically

and reliably alleged, and if there is no longer sufficient material

to support a finding of probable cause when the material in

question "is set to one side," the court must grant the defendant

a hearing to prove the allegations).

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 This house of cards is too flimsy to stand. To be of

Dominican origin does not make one a natural undercover agent (or

inconspicuous as part of a criminal sub-culture); nor does it

mitigate the likelihood of an agent or confidential source being

murdered by the conspiracy upon discovery.1 Meléndez's speculation

that the confidential source must already have known and shared

with the investigators the details of the conspiracy's inner

workings before the wiretap application is equally illogical and

unsupported. No inference of falsity or reckless disregard of the

truth can be drawn from the non-disclosure of these irrelevant bits

of information. For that reason no hearing was required. See

Franks, 438 U.S. at 155-56. Nor did the ample probable cause set

forth in the affidavit for tapping the phones depend in any way on

these alleged omissions, also obviating the need for a Franks

hearing. See Nelson-Rodriguez, 319 F.3d at 34.

II. Defendant's Incriminatory Statements to Investigators

After evidentiary hearings on two days, the district

court made findings of fact and concluded that statements Meléndez

had made while in custody were voluntary under the Fifth Amendment

and that Meléndez had intelligently waived any right to counsel

under the Sixth Amendment. Melendez II, 544 F. Supp. 2d at 85-89.

1
Indeed, as the affidavit explained, the confidential
source Meléndez refers to was in custody at the time of the
application because members of the conspiracy already distrusted
him and had threatened his life.

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 We review the factual findings for clear error. United

States v. Rojas-Tapia, 446 F.3d 1, 3 (1st Cir. 2006). But as to

determinations on matters of law, such as whether the totality of

the circumstances demonstrates that a defendant's statement was

knowing and voluntary, our review is de novo. Id.

As to Fifth Amendment rights, the Supreme Court recently

summarized the familiar Miranda rule in Maryland v. Shatzer, 130 S.

Ct. 1213 (2010):

To counteract the coercive pressure [of a custodial
interrogation], Miranda announced that police
officers must warn a suspect prior to questioning
that he has a right to remain silent, and a right
to the presence of an attorney. After the warnings
are given, if the suspect indicates that he wishes
to remain silent, the interrogation must cease.
Similarly, if the suspect states that he wants an
attorney, the interrogation must cease until an
attorney is present. Critically, however, a
suspect can waive these rights. To establish a
valid waiver, the State must show that the waiver
was knowing, intelligent, and voluntary . . . .

Id. at 1219 (citations omitted). If a suspect invokes the right to

have counsel present during custodial interrogation, further

interrogation may take place without counsel only if "the accused

himself initiates further communication, exchanges, or

conversations" with the authorities. Id. (quoting Edwards v.

Arizona, 451 U.S. 477, 485 (1981)).

As to the Sixth Amendment right to counsel, it attaches

at or shortly after "the initiation of adversary judicial criminal

proceedings--whether by way of formal charge, preliminary hearing,

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indictment, information, or arraignment."2 United States v.

Boskic, 545 F.3d 69, 81 (1st Cir. 2008) (quoting Rothgery v.

Gillespie County, Tex., 554 U.S. 191, 198 (2008)) (internal

quotation marks omitted). These rights may also be waived, and "a

valid waiver of Fifth Amendment rights typically will suffice to

accomplish a waiver of the Sixth Amendment right to counsel in the

context of police questioning of a defendant." Id. at 84 n.17.

The dispute concerns Meléndez's several confessions to

the federal agents of his role in the conspiracy. There is no

assertion that the district court misapprehended or misapplied the

law on waiver of these rights. Rather, Meléndez attacks the

district court's judgments that the government's witnesses were

credible and Meléndez was not in recounting the events following

his arrest.

We briefly summarize the testimony at the suppression

hearings of FBI Agents Juan Berrios Silva and Felix Rivera, and of

Meléndez. Meléndez was arrested at his home just after 5:00 a.m.

on September 13, 2005 by Agent Berrios and others and initially

taken into custody at FBI offices. He testified that he was first

2
In this case, the indictment against the co-conspirators
was filed before Meléndez was arrested. Meléndez argues, and the
government does not dispute, that as a result his Sixth Amendment
right to counsel had already attached when he was first arrested,
so that it covered his interviews with federal agents both before
and after his initial appearance before the magistrate judge. The
analysis that follows assumes without deciding that he is correct
about the timing.

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advised of his rights under Miranda while en route, and was then

given a written form explaining those rights in Spanish upon

arrival at the Federal building. The parties agree that the bottom

portion of the form, which contained an assent to waiver of

Meléndez's rights, was crossed out before he signed the form at

6:45 a.m, because he was not at that time waiving his rights.

Meléndez admits he then went to Pretrial Services where he was

given Miranda warnings a third time.

Agent Berrios and defendant Meléndez testified rather

differently regarding what happened after Meléndez was returned to

the processing room from Pretrial Services, and the district court

credited the agent's testimony. Agent Berrios testified that

Meléndez approached him and another FBI agent and told them he

wanted to cooperate, then spoke with them voluntarily for close to

an hour, confessing to his role in the conspiracy. The next day,

Berrios prepared an FBI Form 302 summarizing Meléndez's debriefing

and the information obtained. Meléndez was kept separately from

the other detainees after he was debriefed.

Meléndez testified, by contrast, that he had specifically

and repeatedly requested his own lawyer from the time he was first

read his Miranda rights, that he had been told that after he

cooperated the agents would call his attorney, and that despite the

agents' constant pressure on him he had consistently refused to

cooperate.

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 At about 1:30 p.m. the same day, Meléndez was taken

before a magistrate judge for his initial appearance. The judge

advised him of his right to consult counsel, but Meléndez, as his

own testimony established, did not request an attorney.3 It is

undisputed that Meléndez did not say he had already requested an

attorney but had been denied one, that he was being pressed to

waive his right to counsel, or that he had already been interviewed

in violation of his rights. Berrios testified that the prosecutor

told the judge at sidebar that Meléndez had decided to cooperate.

It is undisputed that Meléndez was returned to the custody of the

FBI after his initial appearance, which Berrios testified happened

only in order to facilitate Meléndez's cooperation with the

investigation.

Berrios testified that, wanting Meléndez to feel

comfortable because he was cooperating, the agents took him to a

hotel after that initial appearance, and not to jail, as would

usually happen. Another agent, Felix Rivera, was present at the

hotel and testified at the suppression hearing consistently with

Agent Berrios that Meléndez was indeed relaxed and comfortable at

3
For reasons that are not clear, no transcript or
recording of the initial appearance has been located or presented
to us. We rely on the trial judge's findings of fact as to what
happened at the initial appearance. In addition, there is no
reason to believe that this highly experienced magistrate judge did
not advise Meléndez of his right to counsel at his appearance after
his arrest. Meléndez in fact testified that he was read his rights
before the magistrate judge and did not ask for a lawyer.

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the hotel, that he made a few fruitless phone calls to co-

conspirators who would not speak because they already knew he had

been arrested, and that he did not request counsel in either

agent's presence. Both agents testified that the next morning,

September 14, Meléndez was taken to a government building where he

was debriefed in more depth by several agents, including Berrios

and Rivera, at which time he cooperated without ever requesting

counsel or expressing reluctance to cooperate, and after which

Rivera prepared another FBI Form 302 summarizing the interview.

After the interview, the agents consulted with the prosecutors, who

determined Meléndez should be taken to the federal prison.

Meléndez testified that he was terrified to be taken to

the hotel because he thought he was being kidnapped, and that he

had refused to make any calls while there. He testified that

during the second interview the next morning he had continued to

adamantly refuse to cooperate, confess, or make calls, and had

continued to ask to see an attorney.

The district court decided to "afford total credibility"

to the agents' testimony rather than to Meléndez's version of

events. Melendez II, 544 F. Supp. 2d at 86. The court found that

each agent's testimony was delivered credibly and was consistent

with the other's "even after being rigorously cross examined" by

defense counsel. Id. at 85. And circumstantial evidence

corroborated the agents' testimony that Meléndez was voluntarily

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cooperating with the agents during the two days following his

arrest, including that the magistrate judge left Meléndez in the

custody of the FBI after his initial appearance, that he was taken

to a hotel instead of to jail following his initial appearance, and

that he did not ask for a lawyer before the magistrate judge even

when advised he had a right to consult one. Id. at 85-86.

Crediting the agents' testimony, the district court found

as fact that during those two days, Meléndez was calm, collected,

and capable of intelligent and voluntary waiver of his rights. Id.

at 86 n.1. The court found that he initiated the first interview

with the agents, and that he did not ask for an attorney, did not

say he did not want to cooperate, and did not ask to stop any of

the interviews. Id. at 86.

We have reviewed the transcripts of the suppression

hearing and conclude that there is no clear error in the district

court's findings of fact. "Where a district court's 'factual

findings are based on credibility determinations[,] . . . error is

seldom considered "clear" unless the credibility assessments were

based on testimony which was inherently implausible, internally

inconsistent, or critically impeached.'" United States v. Merlino,

592 F.3d 22, 27 (1st Cir. 2010) (quoting Awon v. United States, 308

F.3d 133, 141 (1st Cir. 2002)) (alteration and omission in

original); see also United States v. Coraine, 198 F.3d 306, 309

(1st Cir. 1999) ("When faced with conflicting testimony and nothing

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more, the district court's decision to believe one witness instead

of another and to draw an appropriate conclusion cannot be

considered clearly erroneous."). Meléndez makes no allegation of

inconsistency or impeachment, and the complaints he raises that the

agents failed to produce a signed waiver, a cooperative agreement,

a recording of the interviews, or a signed statement from Meléndez

do not establish inherent implausibility or other basis for a

finding of clear error.

Nor was there any error in the district court's

conclusion of law on these facts that Meléndez had knowingly and

voluntarily decided to cooperate, without counsel, in both of his

interviews, waiving his Fifth and Sixth Amendment rights. He

initiated his first interview on September 13 himself after being

advised twice of his Miranda rights. Even later, after being

advised of both his Fifth and Sixth Amendment rights by the

magistrate judge at his initial appearance, he continued to

cooperate without reluctance and without requesting counsel. The

court did not err in its conclusion that, under all the

circumstances, Meléndez voluntarily and intelligently waived both

his right to remain silent and his right to counsel as of the time

he made his statements.4 See United States v. Thongsophaporn, 503

4
We add that no plausible question was ever raised on this
time frame of the Miranda warnings wearing off before either of the
interviews on September 13th and 14th. See United States v.
Anthony, 474 F.2d 770, 773 (5th Cir. 1973) ("[T]here is no
requirement that an accused be continually reminded of his rights

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F.3d 51, 56 (1st Cir. 2007) (stating standard for waiving Fifth

Amendment rights once invoked when defendant subsequently initiates

conversation with officers); United States v. Leon-Delfis, 203 F.3d

103, 110-11 (1st Cir. 2000) (stating Sixth Amendment waiver

standard and congruence with Fifth Amendment standard).

The judgment of conviction is affirmed.

once he has intelligently waived them."). Nor could there be, even
if there were such a requirement: Meléndez was read his rights
three times the day of his arrest, and the interviews at issue were
over less than two days later.

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