United States v. Mejia

United States Court of Appeals
For the First Circuit

No. 08-2505

UNITED STATES OF AMERICA,

Appellee,

v.

RICARDO MEJIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

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

Before

Boudin, Stahl, and Lipez, Circuit Judges.

George J. West, by Appointment of the Court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, and Sandra R.
Hebert, Assistant United States Attorney, were on brief for
appellee.

March 12, 2010
 STAHL, Circuit Judge. Defendant-appellant Ricardo Mejia

raises a variety of objections to his conviction for conspiring to

distribute 500 grams or more of cocaine and possession of a firearm

in furtherance of a drug crime. He also objects to his sentence.

After careful consideration, we affirm his conviction and sentence

in all respects.

I. Factual Background

a. The Drug Deal

Mejia and his co-defendant Eudy Tejada-Pichardo

("Tejada") were arrested on December 18, 2006, immediately

following the sale of two kilograms of cocaine to two government

informants, Ambioris Falette and Marie Perez. Prior to the sale,

the Drug Enforcement Agency (DEA) recorded two phone calls between

Tejada and the informants discussing Tejada's plan to sell the

informants multiple kilograms of cocaine in Providence, Rhode

Island. Mejia, the appellant here, was neither a part of these

conversations nor was he mentioned during them. However, according

to phone records entered into evidence, in the six weeks preceding

the drug deal Mejia and Tejada phoned each other over 470 times,

including once on the night that the deal took place. In addition,

during a third recorded phone call between Tejada and the

informants on the night of the deal, Tejada stated that "we are

already heading over there." (emphasis added).

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 On the night of the deal, Tejada and Mejia arrived

together at a McDonald's restaurant in Providence in a green car.

Informant Perez arrived in a red car and informant Falette

subsequently arrived in a car owned by the DEA. When Falette

arrived in the parking lot, Tejada, Mejia, and Perez emerged from

the McDonald's restaurant. Tejada then removed a suitcase from

Perez's car, placed it in Falette's car and then got into the car

with Falette. While Tejada was moving the suitcase, Mejia stood

near Perez's car, looking back and forth and up and down the

street. According to testimony from a DEA agent who observed the

exchange, Mejia's actions resembled "counter-surveillance." After

the suitcase was moved, Mejia got into the passenger seat of

Perez's car and both cars left the parking lot. (According to the

DEA recordings, the plan was to drive to another location where

Falette would pick up the cash payment and give it to Tejada.

Tejada's car remained unoccupied and parked in the parking lot.)

Soon after, police officers stopped both cars and

arrested Mejia and Tejada. The police found two kilograms of

cocaine in a hidden compartment in the suitcase and a loaded .45

caliber pistol with an obliterated serial number on the floor of

Perez's car, just behind the driver's seat and with the handle

pointed toward the passenger's seat, where Mejia had been sitting.

A search of Tejada's car, still parked at the McDonald's, turned up

a small notebook containing lists of names paired with numbers. A

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DEA agent later testified that this was a "drug ledger."1 The

notebook also bore a signature which matched the one that Mejia

subsequently placed on a Miranda form. A search of Mejia's person

following his arrest yielded numerous pieces of paper which bore

notations that were similar to those in the notebook, were written

in the same handwriting, shared several names in common with those

appearing in the notebook, and contained columns and numbers that

corresponded to the going rate of cocaine.

b. Mejia's Admissions

At the scene of the arrest, Detective Andres Perez, a

native Spanish speaker, orally advised Mejia of his Miranda rights

in Spanish. Once at the police station, Mejia was again advised

orally, in Spanish, of his rights. Detective Perez then confirmed

that Mejia could read Spanish and gave Mejia a Spanish-language

form that delineated his Miranda rights. Officer Perez also read

each of the rights out loud in Spanish from the text of the form

and asked Mejia whether he understood his rights. Mejia indicated

that he did and then placed his initials next to each of the

enumerated rights and initialed a statement in Spanish that the

police had made no threats or promises to him; he also checked a

1
According to testimony at trial from a DEA agent, the
notebook contained lists of customer names paired with drug
quantities and amounts of money collected. The quantity of drugs
listed in each section added up to around 1,000, while the paired
remittance amounts added up to around $21,000. The agent testified
that these values corresponded to the fact that 1,000 grams of
cocaine had a market value of between $18,000 and $23,000 at that
time.

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box indicating that he understood his rights. Finally, Detective

Perez told Mejia that, if he wished, he could sign his name to the

bottom of the form and Mejia elected to do so. It is

uncontroverted that the form contained no language regarding waiver

of rights; it only laid out the content of Mejia's Miranda rights.

After signing the form, Mejia began answering questions

posed to him by Detective Perez and the other officer present,

Agent Michael Naylor.2 According to Perez's translation of Mejia's

oral statements, Mejia told the officers that Tejada had given him

the gun when they were in the McDonald's, that he had then tucked

the gun into his waistband, and that he had placed the gun under

the driver's seat of the informant's car when he saw police

approaching. Mejia also said that his job was to "protect" Tejada

and "watch his back," though when the police asked what he was

protecting Tejada from, he merely stated "you know." Mejia also

said that he "assumed" the transaction that took place was a drug

deal. After making these statements, Mejia offered to become a

government informant. When the officers attempted to commit

Mejia's statements to writing, Mejia became evasive and the

officers terminated the interrogation. Mejia's interaction with

the police officers was not taped and no contemporaneous notes were

taken. However, Agent Naylor wrote a report of the interview two

days later. For the duration of the interrogation Mejia had one

2
Agent Naylor only spoke English and Detective Perez recalled
translating Mejia's answers into English for Naylor.

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arm handcuffed to a rail coming out from the wall, but there was no

testimony or allegation that he was in any discomfort.

c. Indictment, Trial, and Appeal

Mejia was indicted on three counts, conspiracy to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B), as well as 21 U.S.C. § 846; possession

with intent to distribute 500 grams or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); and possession

of a firearm in furtherance of a drug crime, in violation of 18

U.S.C. § 924(c). At trial and over Mejia's objection and

unsuccessful motion to suppress, the government introduced the

incriminating statements Mejia made during the interrogation. Also

over Mejia's objection, the government introduced the recorded

conversations between Tejada and the informants as well as the drug

ledgers. The jury convicted Mejia on the conspiracy and gun

charges but acquitted him on the charge of possession with intent

to distribute. The district court sentenced him to the mandatory

minimum of five years on each count, to run consecutively for a

total of ten years.

Several weeks after the trial concluded, the government

received a "trace report" on the pistol which indicated that it was

originally purchased by a man from New Hampshire and had not been

reported stolen. Mejia moved for a new trial based on this new

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evidence and alleged discovery violations. The district court

denied the motion following an evidentiary hearing.

II. Discussion

a. The Motion to Suppress

Though Mejia raises numerous objections to his conviction

and sentence, his appeal of the denial of the motion to suppress

his incriminating statements is the only one of real consequence.

We thus begin our analysis there.

We review the district court's findings on the denial of

the suppression motion for clear error and review its legal

determinations de novo. See United States v. Parker, 549 F.3d 5,

8 (1st Cir. 2008).

Mejia argues that the district court erred in denying his

motion to suppress because the officers did not tell him what he

was suspected of, did not "accurately interpret his rights into

Spanish," and did not record the interrogation "in any fashion."

Mejia argues that these three factors prevented the government from

meeting its burden of proving that Mejia waived his rights

knowingly and voluntarily.

Of course, Mejia is correct that any waiver of the

Miranda rights to silence and access to an attorney must be both

knowing and voluntary. See, e.g., United States v. Rojas-Tapia,

446 F.3d 1, 4 (1st Cir. 2006). However, the waiver need not be

expressed. In North Carolina v. Butler, the Supreme Court

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confirmed that, while courts must presume that a defendant did not

waive his Miranda rights absent an express waiver, "[t]hat does not

mean that the defendant's silence, coupled with an understanding of

his rights and a course of conduct indicating waiver, may never

support a conclusion that a defendant has waived his rights." 441

U.S. 369, 373 (1979). Thus, the Court explained, an implied waiver

can be "inferred from the actions and words of the person

interrogated." Id.3 To make such an inference, we must examine

the "totality of the circumstances surrounding the interrogation"

to determine whether the defendant made both an "uncoerced choice"

and had the "requisite level of comprehension" such that a court

may properly conclude "that the Miranda rights have been waived."

Moran v. Burbine, 475 U.S. 412, 421 (1986).

As we explained in Bui v. DiPaolo, there are "certain

types of cases in which courts routinely conclude that a defendant

who has professed an understanding of his right to remain silent

has waived that right." 170 F.3d 232, 240 (1st Cir. 1999). These

3
In briefing and at oral argument the government urged the
court to move beyond the Butler totality-of-the-circumstances test
for waiver and instead extend the Supreme Court's holding in Davis
v. United States, 512 U.S. 452 (1994), to the right to remain
silent. The government asks that we conclude that any statement
made by a "Mirandized" suspect who has not expressly invoked his
right to remain silent is admissible. This issue is currently
pending before the Supreme Court in Thompkins v. Berghuis, 547 F.3d
572 (6th Cir. 2008), cert. granted, 77 U.S.L.W. 3670 (U.S. Sept.
30, 2009) (No. 08-1470). We decline to extend our jurisprudence
beyond Butler in this case because doing so is not mandated by our
precedent, or current Supreme Court precedent, and most
importantly, the case before us can be resolved under our existing
totality-of-the-circumstances test.

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include cases where "after receiving warnings and asserting

(equivocally or unequivocally) a right to remain silent, [the

defendant] spontaneously recommences the dialogue with his

interviewers;" where "a defendant's incriminating statements were

made either as part of a 'steady stream' of speech . . . or as part

of a back-and-forth conversation with the police;" and where

"having received Miranda warnings, a criminal defendant responds

selectively to questions posed to him." Id. In Mejia's case, the

factual scenario is comparable to these examples. He received

Miranda warnings three times in his native language, twice orally

and once in writing; he also attested that he understood his rights

by initialing and signing the Miranda warning form. According to

the district court's factual findings,4 he then began responding to

questions willingly and even offered to become an informant. The

totality of the circumstances indicate that this was a voluntary

conversation that Mejia undertook after having been fully advised

of his rights. We agree with the district court that such a

scenario fits comfortably within the doctrine of implied waiver.

Mejia's three objections do not undermine our conclusion.

First, his argument that his waiver was not knowing because the

4
Notwithstanding Mejia's argument in his reply brief, our
review of the transcript from the suppression hearing confirms that
the district court's findings as to Mejia's apparent responsiveness
during the interrogation were well-grounded in the record and were
not clearly erroneous. That Mejia was at times "evasive,"
according to the officers, does not undermine the voluntariness of
the statement that he affirmatively chose to make.

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"suspected crime" portion of the Miranda warning form was left

blank is unconvincing given that Mejia's arrest and interrogation

took place immediately after the drug transaction in the McDonald's

parking lot. Under the circumstances, Mejia was plainly aware of

the nature of the charges that might be filed against him. See 18

U.S.C. § 3501(b) (explaining factors court must consider in

determining voluntariness, including whether the defendant "knew

the nature of the offense with which he was charged or of which he

was suspected at the time of making the confession").

Second, his argument that his Miranda rights were not

accurately interpreted into Spanish is a red herring. Mejia does

not contest the accuracy of the text of the written Miranda warning

form itself; he only argues that Detective Perez was not formally

trained in Spanish translation. The facts are that Mejia

acknowledged that he could read Spanish, his rights were presented

to him in writing in Spanish, he acknowledged understanding those

rights, and Mejia does not question the accuracy of the form.

Given this context, and without more, Detective Perez's Spanish-

language abilities are not relevant to whether Mejia comprehended

his rights as presented on the written form.

Third, Mejia's argument regarding the absence of

contemporaneous notes of the interrogation or a video or tape

recording is not properly before this court as it was not raised

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below.5 See, e.g., United States v. Torres, 162 F.3d 6, 11 (1st

Cir. 1998) (waiver applies where "a defendant has failed altogether

to make a suppression motion but also when, having made one, he has

neglected to include the particular ground that he later seeks to

argue"). We thus affirm the district court's denial of Mejia's

motion to suppress the statements he made during the interrogation.

b. Mejia's Remaining Claims

Mejia raises several additional claims on appeal, none of

which need detain us long. First, he contests the admission by the

district court of three additional pieces of evidence, the recorded

conversations between Tejada and the two informants, the drug

ledgers, and the testimony of Detective Perez as to the content of

Mejia's incriminating statements. As to the recorded

conversations, which were admitted by the district court under a

Petroziello analysis, we affirm, finding no abuse of discretion.

Under Federal Rule of Evidence 801(d)(2)(E), the statements of a

co-conspirator may be admitted against another co-conspirator if

the statements were made during the course and in furtherance of

the conspiracy. Mejia's objection on appeal is that there was not

sufficient evidence for the district court to determine that a

conspiracy existed at the time the statements were made, as

5
Mejia cross-examined the officers at the suppression hearing
about the lack of contemporaneous documentation of the
interrogation, but as the district court noted in its suppression
order, Mejia neither raised this as a grounds for suppression in
his memorandum to the court, nor did he claim that he did not make
the statements attributed to him.

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required by United States v. Petroziello, 548 F.2d 20, 23 (1st Cir.

1977). We disagree. The recorded conversations took place on

December 11 and 12, while the drug deal and subsequent arrest

occurred just a week later, on December 18. Significant evidence

supports the district court's conclusion that the conspiracy

existed at the time of the calls, including the drug ledgers in

Mejia's handwriting that depicted an on-going, long-term business

of cocaine sales; the high volume of phone calls (over 470 in a six

week span leading up to the drug sale) between Tejada and Mejia;

and Mejia's own incriminating statements.

As to the district court's admission of the drug ledgers,

we similarly find no abuse of discretion. Mejia argues that the

drug ledgers were more prejudicial than probative, violating

Federal Rule of Evidence 403, and were admitted to show propensity,

in violation of Federal Rule of Evidence 404(b). Mejia also argues

that there was insufficient evidence to support the conclusion that

the papers were indeed drug ledgers. We are unpersuaded. We have

frequently allowed admission of just this sort of evidence --

notebooks and slips of paper containing names, quantities and

amounts that correspond to the market rate for drugs -- for proof

of the existence of a drug conspiracy. See, e.g., United States

v. Casas, 356 F.3d 104, 125 (1st Cir. 2004). The testimony of the

DEA agent laid a proper foundation for the admission of the

evidence and the jury was free to infer that the evidence supported

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the conspiracy charge against Mejia. In addition, the evidence was

highly probative given Mejia's central defense, which was that he

was "merely present" at the drug deal and otherwise uninvolved in

the conspiracy. We thus affirm.

Mejia's final evidentiary objection is that the district

court improperly allowed Detective Perez to testify as to the

content of Mejia's incriminating statements given that Perez lacked

formal training in English-Spanish translation. We again find no

abuse of discretion. The district court permitted the defense to

probe Detective Perez's translation ability at the suppression

hearing and again at trial and allowed an expert witness for the

defendant to testify as to the reliability and benefits of

certified interpreters. Mejia's proof of Perez's supposed

inadequacy is that at the suppression hearing Perez partially

mistranslated one phrase (he translated "I am a suspect in the

crime of . . . " to "I am suspicious of the crime of . . . ") and

he lacked official training in translation. We find no abuse of

discretion in admitting his testimony given that Perez testified

that he is a native Spanish speaker (born in Colombia), regularly

speaks both English and Spanish at home and work, and has served as

a translator in several law enforcement contexts. See United

States v. Gonzalez-Ramirez, 561 F.3d 22, 29 (1st Cir. 2009). In

addition, "we see this argument as one more properly directed to

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the weight of the evidence, not its admissibility." Id. We

therefore affirm admission of the testimony.

Having affirmed the district court's evidentiary

determinations, we address Mejia's sufficiency of the evidence

claim.6 Reviewing the evidence in the light most favorable to the

verdict, see United States v. Baltas, 236 F.3d 27, 35 (1st Cir.

2001), and giving particular attention to Mejia's confession, his

conduct at the drug deal, his frequent telephone contact with

Tejada leading up to the deal, and the various recovered drug

ledgers, we easily conclude that sufficient evidence supported

Mejia's conviction on the conspiracy and gun charges.

We also deny Mejia's appeal of the denial of his motion

for a new trial on the basis of the gun "trace report." The report

was received by the government after the verdict was returned and

was then turned over to defense counsel. The report showed that

the gun in question was originally purchased by a New Hampshire man

and had not been reported missing. Mejia argues that this was

"newly discovered evidence" necessitating a new trial and, further,

that the government suppressed evidence of the report in violation

of Brady v. Maryland, 373 U.S. 83 (1963). The district court held

an evidentiary hearing on the new trial motion and concluded that

there was no Brady violation because the government did not receive

6
Mejia's brief also seems to raise the district court's denial
of his motion for acquittal and for a new trial on the same
sufficiency grounds. We deny those grounds of appeal given our
conclusion that sufficient evidence supported his conviction.

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the report until after trial and, further, that the report was in

no way exculpatory. Like the district court, we fail to see the

relevance of the trace report to the charge that Mejia possessed

the gun in furtherance of a drug crime. See United States v.

Maldonado-Rivera, 489 F.3d 60, 66-67 (1st Cir. 2007) (explaining

materiality requirement for new trial). After all, the gun was

found in the car Mejia was riding in, had an obliterated serial

number, and he confessed to having possessed the gun during the

drug deal in order to protect Tejada. The "trace report"

information regarding the original purchaser of the gun, without

more, is not material or exculpatory given the charge. We

therefore find no abuse of discretion and affirm denial of the new

trial motion.

Finally, Mejia makes a sentencing argument regarding the

"except" clause in 18 U.S.C. § 924(c)(1)(A), arguing that it was

legal error for the district court to impose a consecutive five-

year term for his gun conviction. Mejia concedes in his reply

brief that a favorable result on this claim would require us to

reverse this court's recent decision in United States v. Parker,

549 F.3d 5 (1st Cir. 2008), cert. denied, 129 S. Ct. 1688 (2009),

something that a three-judge panel may not do. We therefore affirm

his sentencing.

III. Conclusion

For the above reasons, we affirm in all respects.

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