United States Court of Appeals
For the First Circuit
No. 15-2061
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID ALCANTARA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Molly Kapstein Cote on brief for appellant.
Donald C. Lockhart, Assistant United States Attorney, and
Peter F. Neronha, United States Attorney, on brief for appellee.
September 19, 2016
HOWARD, Chief Judge. Defendant-Appellant David
Alcantara was convicted, after a jury trial, of conspiracy to
commit bank fraud and conspiracy to pass counterfeit currency.
Alcantara now challenges these convictions, raising various
evidentiary issues and one purported instance of prosecutorial
misconduct. Finding each of Alcantara's claims meritless, we
affirm.
I.
To provide context, we describe the relevant facts
supported by the evidence at trial. In December 2009, Alcantara
and others set out to steal money from a Citizens Bank account
belonging to a car-wash business. One of the co-conspirators was
a teller at the bank. Another arrived at the bank posing as an
agent of the car-wash company. The second co-conspirator
approached the compromised teller and presented a false passport.
The funds were successfully transferred from the car wash's account
to a fraudulent account in the name of Hernandes Realty. Shortly
thereafter, two other confederates liquidated much of the funds
through a series of cashiers' checks.
Just weeks later, on January 19, 2010, Alcantara met
with a person — who, unbeknownst to Alcantara, was an undercover
government agent — about the possibility of obtaining fake drivers'
licenses. During the meeting, Alcantara indicated that he needed
the licenses in "four or five days," which did not leave the agent
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enough time to prepare them. Alcantara told the agent that the
two might be able to work together "for the next round."
The very next day, Alcantara perpetrated a second bank
fraud, this time from Bank of America. To execute the scheme,
Alcantara provided two co-conspirators with false temporary
licenses and instructed them to open accounts. The accomplices
later transferred funds into these accounts. Unfortunately for
Alcantara, however, neither co-conspirator was successfully able
to withdraw the money. One was arrested, and the other fled after
hearing what he thought was an alarm.
On January 24, Alcantara had another conversation with
the undercover agent. During this call, Alcantara asked the agent
whether he knew anyone who worked at a bank. The two spoke for a
third time on January 27, again discussing the possibility of the
agent preparing fake licenses.
In February 2010, Alcantara became involved in a scheme
to pass counterfeit money. Essentially, the plan was to use
counterfeit bills to purchase inexpensive items in various retail
stores, receiving change in authentic currency. Alternatively,
the conspirators also purchased more expensive items, returning
them shortly thereafter for real currency. On February 23,
Alcantara drove to a mall in Farmington, Connecticut with his
brother Urias and other co-conspirators. Alcantara distributed
counterfeit $100 bills to the group, which the others then
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attempted to pass. Ultimately, Urias Alcantara was caught and
arrested in possession of seventeen counterfeit $100 bills. Before
his brother's apprehension, Alcantara unsuccessfully attempted to
alert the group that the police were approaching.
On March 4, the Secret Service visited a T-Mobile store
where the conspirators had passed some of the counterfeit bills.
The next day, one member of the group texted Alcantara to inform
him of this development. He further indicated that the agents
planned to return to the store to speak with the manager as well
as review records and camera footage. Alcantara was arrested
eleven days later, on March 15, 2010, at JFK International Airport.
II.
Alcantara raises a number of issues on appeal, namely,
(1) various unpreserved evidentiary challenges; (2) two arguably
preserved evidentiary challenges; and (3) an unpreserved
prosecutorial misconduct claim.
A.
Alcantara identifies five purported evidentiary errors
that he concedes he failed to raise below. Our review accordingly
is for plain error. United States v. Peña–Santo, 809 F.3d 686,
694 (1st Cir. 2015). This standard is an "exacting" one, requiring
Alcantara to establish that "(1) there was an error, (2) which was
clear or obvious, (3) that affected his substantial rights, and
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(4) also seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id.
1.
Alcantara first takes aim at various references to
"luxury vehicles" in the trial transcript, as well as a photograph
of his Bentley that was entered into evidence. According to
Alcantara, the "cumulative effect" of this evidence was to bias
the jury against him due to his "lavish lifestyle."
Contrary to Alcantara's contention, the cited testimony
constituted probative evidence. Multiple witnesses testified that
they knew Alcantara by his Bentley. Such testimony was admissible
to establish the witnesses' knowledge of the defendant.
Alcantara's response that "[i]dentity was not an issue in this
case" is beside the point. See Old Chief v. United States, 519
U.S. 172, 186 (1997) (citing the "familiar, standard rule" that a
defendant "may not stipulate or admit his way out of the full
evidentiary force of the case"). Other witnesses, who were co-
conspirators in Alcantara's criminal plots, testified that he
drove a Lexus during the course of the conspiracy, including to
meetings and bank branches. This testimony was admissible as
"intrinsic to the crime[s] for which [Alcantara was] charged and
[] on trial." United States v. DeSimone, 699 F.3d 113, 124 (1st
Cir. 2012).
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Alcantara's alternative argument that, even assuming the
challenged evidence was relevant, it was inadmissible under
Federal Rule of Evidence 403, fares no better. Alcantara points
to twenty-one references to luxury vehicles, in addition to the
photograph of his Bentley, in a trial transcript that spans
hundreds of pages. Moreover, several of these references took
place during defense counsel's cross-examinations and closing
argument. Finally, the mentions of luxury vehicles were generally
matter-of-fact statements that Alcantara was known for driving a
Bentley or that he drove a Lexus on certain occasions. There was
nothing particularly inflammatory about them, such that the
probative value of the testimony would be "substantially
outweighed by a danger of . . . unfair prejudice." See Fed. R.
Evid. 403. Accordingly, it is doubtful that the district court
erred at all, and it certainly did not commit plain error, by
declining to exclude this evidence sua sponte.
2.
Alcantara's second claim of evidentiary error runs along
similar lines. He argues that a handful of references to his
wearing a New York Yankees baseball cap prejudiced the jury (which
he assumes to have been composed of Boston Red Sox fans) against
him. As an initial matter, all but two of the cited references
occurred during defense counsel's cross-examination. In any
event, this testimony, like the references to luxury vehicles
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discussed above, was relevant to the witnesses' knowledge of
Alcantara and his appearance. Any possibility of unfair prejudice
was ameliorated when the district court explicitly instructed the
Rhode Island jury not to hold Alcantara's wearing of a Yankees hat
against him.
3.
Alcantara next takes issue with the admission of certain
evidence relating to illegal activity by his brother Urias. This
argument proceeds from the erroneous assumption that the
government failed to connect Alcantara to his brother's
misconduct.
The evidence in question consisted of (1) two
photographs of Urias with counterfeit money and (2) testimony
regarding Urias's arrest for passing counterfeit bills at the
Farmington mall. With respect to the latter issue, the government
introduced evidence that Alcantara, far from being merely present
when his brother was arrested, was a central player in the criminal
scheme. Alcantara drove to the mall with co-conspirators,
distributed the counterfeit $100 bills to them, and attempted to
warn the others when the police were approaching. Accordingly,
testimony about the Farmington incident was not, as Alcantara
contends, prior bad acts evidence subject to Federal Rule of
Evidence 404(b). Rather, it constituted evidence "intrinsic" to
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the criminal conspiracy for which Alcantara was tried and
convicted. DeSimone, 699 F.3d at 124.
A similar analysis applies to the photographs, which
depict Urias next to a table covered in currency. The government
introduced evidence that the bills in the photos were counterfeit.1
The photos were obtained from Alcantara's iPhone, along with a
third image of Alcantara himself standing over a similar table of
bills.2 The pictures were all taken within minutes of each other.
In these circumstances, and in light of the previously discussed
evidence that Alcantara and his brother both joined in a conspiracy
to pass counterfeit bills, the photographs of Urias were admissible
against Alcantara to prove that conspiracy.
4.
Alcantara's fourth claim of error relates to a Secret
Service agent's testimony that the bills depicted in the
photographs discussed above were indeed counterfeit. Essentially,
Alcantara argues that this testimony constituted improper lay
opinion. We have held that a lay witness may provide an opinion
based upon expertise that he or she "personally acquires through
experience, often on the job." United States v. Vega, 813 F.3d
1 Alcantara also challenges the admissibility of this
testimony. We address his argument on this point separately below.
2
Alcantara argues that the third photo was also inadmissible,
but, as discussed below, this argument similarly fails.
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386, 394 (1st Cir. 2016) (citation omitted). Such lay expertise
must be "the product of reasoning processes familiar to the average
person in everyday life." Id. (citation omitted). For example,
"a police officer noticing patterns of behavior across criminal
operations" who "uses straightforward logic to conclude a
defendant's behavior fits within that pattern . . . does not need
to be qualified as an expert." Id.
Here, the agent testified that he had previously
investigated numerous cases involving counterfeit bills. In the
case at hand, the agent determined that the bills depicted in the
photographs were counterfeit by considering a variety of factors,
including: (1) one bill was draped over a stick of deodorant,
which counterfeiters often use to avoid detection;3 (2) the ink on
another bill appeared to be "bleeding," which does not happen to
real bills; (3) the bills were all face-down such that the serial
numbers were not visible; (4) the bills were all the same
denomination; and (5) the bills all appeared new. These
considerations represent precisely the type of straightforward
experiential logic that this court has repeatedly found to be
within the realm of permissible lay opinion testimony. See, e.g.,
United States v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012) (agent's
3 The agent explained that counterfeiters use deodorant to
coat the bills, creating a layer of substance which can make them
appear genuine in the "counterfeit pen test" commonly used by
retailers.
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testimony that "based on his experience in prior drug
investigations . . . traffickers often list unrelated third parties
as their telephones' subscribers"); United States v. Maher, 454
F.3d 13, 24 (1st Cir. 2006) (officer's testimony that "based on
his experience" Post-It notes "were likely notes of drug orders
and the number '4' referred to a quantity of the drug").
Accordingly, the admission of this testimony was not plain error.
To the extent that Alcantara also generally assails the
reliability of the agent's testimony, these concerns go to the
"weight of the evidence, not its admissibility." See United States
v. Mejia, 600 F.3d 12, 19-20 (1st Cir. 2010) (citation omitted).
5.
In a final claim of unpreserved evidentiary error,
Alcantara argues that the court improperly admitted "flight"
evidence, namely, the fact that he was arrested at JFK Airport.
Such evidence is admissible so long as there is "sufficient
extrinsic evidence of guilt to support an inference that [the]
defendant's flight was not merely an episode of normal travel but,
rather, the product of a guilty conscience related to the crime
alleged." DeSimone, 699 F.3d at 125 (citation omitted). While
Alcantara disputes the existence of a sufficient factual
predicate, the extrinsic evidence of his guilt was substantial,
highlighted by the testimony of multiple co-conspirators in both
the bank frauds and the counterfeiting plot. This fact alone dooms
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Alcantara's claim of plain error. See, e.g., id. (noting
"overwhelming evidence" of the defendant's guilt); United States
v. Otero–Méndez, 273 F.3d 46, 53 (1st Cir. 2001) (finding
sufficient factual predicate based on evidence of defendant's
involvement in the charged carjacking). If more were needed, the
inference of a guilty conscience is further supported by the fact
that Alcantara's arrest at the airport occurred just eleven days
after he learned that the authorities were investigating his
counterfeiting scheme.
B.
Alcantara raises two additional evidentiary issues on
appeal, which he claims to have preserved below. Assuming that
Alcantara did preserve these arguments,4 we review the district
court's evidentiary rulings for abuse of discretion. See United
States v. Gemma, 818 F.3d 23, 35 (1st Cir. 2016).
4This assumption is a generous one. Indeed, with respect to
the first purportedly preserved issue, namely, evidence relating
to Alcantara's discussions with the undercover agent, Alcantara
concedes that he only objected to the admission of the transcripts
of those conversations. He did not object to the recordings or
any other aspect of the agent's testimony. More broadly, the sole
record evidence cited by Alcantara to establish the preservation
of these issues is a one-page pre-trial motion in limine.
Ordinarily, where the district court denies such a motion, the
moving party must renew its objection at trial to avoid forfeiture.
See, e.g., United States v. Raymond, 697 F.3d 32, 37 (1st Cir.
2012).
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1.
First, Alcantara argues that testimony regarding his
conversations with the undercover agent was irrelevant and thus
inadmissible. This contention need not detain us long.
Alcantara's first meeting with the agent, during which he expressed
a desire to obtain fake licenses, occurred on January 19, 2010,
just weeks after his involvement in a December 2009 bank fraud
using a fake passport. On January 20, Alcantara and his
confederates set in motion a second bank fraud scheme, again using
false identification documents (albeit not ones provided by the
agent). In the space of the following week, Alcantara had two
more conversations with the undercover agent relating to (1) any
contacts the agent might have at banks and (2) Alcantara's desire
to obtain fake licenses. Alcantara's communications with the agent
were part and parcel of the charged conspiracy, and we accordingly
perceive no error. See DeSimone, 699 F.3d at 124.
2.
Alcantara's other "preserved" argument is similarly
unavailing. Alcantara contends that the photograph of him standing
over a table covered in currency was "irrelevant and unduly
prejudicial." This argument proceeds from the flawed assumption
that the government failed to introduce any "reliable evidence
that the money in the picture was in fact counterfeit." As
discussed above, a Secret Service agent did opine that, based on
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his experience, the bills in the picture appeared to be
counterfeit. While Alcantara quibbles with the reliability of the
agent's opinion, this goes only to the weight of the evidence, not
to its admissibility. See Mejia, 600 F.3d at 19-20. Indeed, as
Alcantara himself points out, defense counsel conducted a robust
cross-examination in an effort to undermine the agent's testimony.
Unfortunately for Alcantara, the jury was not swayed. The evidence
that the bills in the photograph were counterfeit dooms Alcantara's
argument. At the risk of stating the obvious, a picture of the
defendant with a pile of counterfeit bills is relevant to prove
his involvement in a counterfeiting conspiracy.
C.
The final arrow in Alcantara's quiver is an unpreserved
claim of prosecutorial misconduct. In analyzing a prosecutor's
purportedly improper statement, "we typically ask whether [that]
statement so poisoned the well that a new trial is merited."
United States v. Cruz-Díaz, 550 F.3d 169, 174 (1st Cir. 2008)
(citation omitted). We have identified the following four factors
as relevant to this inquiry: "(1) the severity of the misconduct;
(2) the context in which it occurred; (3) whether the judge gave
any curative instructions . . . ; and (4) the strength of the
evidence against the defendant." United States v. Fernandez, 94
F.3d 640 (1st Cir. 1996) (unpublished table decision), 1996 WL
469009, at *8 (citation omitted). Because Alcantara failed to
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object at trial, our review is for plain error. Cruz-Díaz, 550
F.3d at 174.
Alcantara takes issue with a few isolated sentences from
the government's rebuttal argument: "Now, the Defendant says,
well, where are the insiders? . . . That's for another day. That's
for another jury. This jury is tasked with deciding what this
member of the conspiracy did, what this Defendant did." As an
initial matter, it is hardly clear that the prosecutor's statement
was improper. Of course, it is true that the jury at Alcantara's
trial was tasked with assessing only his guilt, not that of any
other co-conspirator. However, Alcantara contends that the
prosecutor's statement "provided false affirmation to the jury
that other individuals were in fact charged for the crimes."
Proceeding from the dubious assumption that the
prosecutor acted improperly, we still fail to perceive plain error.
Any misconduct that occurred was far from severe. The statements
at issue occupy a mere handful of lines in the trial transcript.
Moreover, during his closing argument, defense counsel had
referred to the absence of various uncharged co-conspirators.
Accordingly, the prosecutor's comment can be read as an attempt to
shift the jury's focus back to where it belonged: the evidence
against Alcantara. Nonetheless, after making the statement at
issue, the prosecutor expressed her openness to a curative
instruction that her comment "was not intended to suggest whether
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anyone else was charged." When the court offered to provide such
an instruction, defense counsel expressly declined. Finally, as
laid out above, the evidence against Alcantara in this case was
overwhelming. In these circumstances, the prosecutor's isolated
and relatively innocuous comment did not "so poison[] the well"
that a new trial was required. See Cruz-Díaz, 550 F.3d at 174
(citation omitted); see also Fernandez, 94 F.3d 640, at *11
(finding no plain error where the prosecutor "erroneously stated
that the testifying drug traffickers were 'either in jail or go to
[sic] jail'").
D.
We also reject Alcantara's claim that the cumulative
effect of the purported errors discussed above requires a new
trial. See United States v. Gaw, 817 F.3d 1, 12 (1st Cir. 2016)
("[C]umulative-error analysis is inappropriate when a party
complains of the cumulative effect of non-errors." (citation
omitted)).
III.
For the foregoing reasons, we AFFIRM Alcantara's
convictions.
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