United States v. Melo

United States Court of Appeals
For the First Circuit

No. 18-2147

UNITED STATES OF AMERICA,

Appellee,

v.

JAMIE L. MELO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Howard, Chief Judge,
Thompson and Barron, Circuit Judges.

Gary G. Pelletier, with whom Pelletier Clark & Caley, LLC was
on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.

March 27, 2020
 BARRON, Circuit Judge. Jamie Melo challenges his 2017

convictions, which arise from the investigation into a criminal

scheme involving Carlos Rafael. Colloquially known as the

"Codfather," Rafael owned numerous commercial fishing businesses

in the New Bedford, Massachusetts, area and was the leader of a

conspiracy that smuggled unreported cash-income from his

businesses to his personal bank accounts in the Azores, which are

Portuguese islands in the Atlantic Ocean. Melo's convictions

stemmed from his role in assisting Rafael in smuggling cash through

Logan International Airport in Boston and onto a plane headed to

the Azores in the fall of 2015. The convictions were for one count

of conspiracy, in violation of 18 U.S.C. § 371, and one count of

structuring the export of monetary transactions, in violation of

31 U.S.C. § 5324(c)(3). Finding no merit to Melo's challenges to

these convictions, we affirm.

In early 2015, the United States Internal Revenue

Service ("IRS") began investigating Rafael after learning that he

had not reported some of his taxable income. Undercover IRS

agents, feigning interest in buying one of Rafael's businesses,

soon learned that he was taking unreported cash with him on flights

to the Azores and depositing the cash in a bank account that he

maintained there.

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 Rafael explained to the undercover agents that he was

able to smuggle cash through the airport because he had a

connection in the Bristol County Sheriff's Office in

Massachusetts, Antonio Freitas, who could help him get past airport

security. Rafael also told them that Jamie Melo was a friend of

his in the Bristol County Sheriff's Office.

Rafael later told the undercover agents that he was

planning a trip to the Azores on November 10, 2015. He repeatedly

declined the undercover agents' requests, however, to carry money

for them on that flight.

When these agents first asked Rafael to do so, he refused

to carry their money and suggested that they "would never meet"

Freitas. In rejecting a second request from the undercover agents

to carry their money with him, one of the undercover agents

testified that Rafael refused to do so because there would "be law

enforcement officers with him from the Sheriff's Office and he did

not feel comfortable with those individuals with him to be

smuggling the cash."

On the day of the planned trip, federal law enforcement

agents set up surveillance to track the movements of Rafael and

his travel companions at the airport. Melo, who was also traveling

to the Azores that day to manage the "Thanksgiving in the Azores"

program that he ran through the Bristol County Sheriff's Office,

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arranged for a Sheriff's Office van to pick up other passengers,

including Rafael, who were taking the same flight to the Azores.

Before going through security at the airport, Melo met

with three of the other Azores-bound travelers in a public

restroom. He asked them if they could carry envelopes for Rafael

onto the plane.

When Rafael went through the security checkpoint, agents

for the United States Transportation Security Administration

("TSA") discovered that he was carrying $27,000 in cash on his

person. In response, the TSA agents directed Rafael to a United

States Customs and Border Patrol window, where he could declare

the currency.

Rafael then joined Melo on the plane. The two sat

together in first class. When the plane landed, the envelopes

found their way back to Rafael. Soon thereafter, he deposited

$76,000 in cash in his personal bank account in the Azores.

Law enforcement continued investigating the

cash-smuggling scheme after the November 10, 2015, trip. Sometime

thereafter, in consequence of that investigation, Rafael pleaded

guilty to charges of conspiracy, bulk cash smuggling, and tax

evasion. Freitas, for his part, was convicted of related crimes

after a jury trial.

On August 30, 2017, Special Agent Alison Pauley ("SA

Pauley") of the Federal Bureau of Investigation and Special Agent

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Michael Ryan ("SA Ryan") of the United States Department of

Homeland Security traveled to Melo's home to request an interview

with him regarding the November 2015 trip to the Azores. Melo

consented to an interview and invited the agents into his

residence.

During the course of the interview, which Melo's

attorney John Zajac participated in by phone, Melo admitted, among

other things, to having passed out envelopes on Rafael's behalf to

other passengers on the trip and to having carried an envelope for

Rafael on the November 10, 2015, flight. Melo also stated that he

only began to suspect that the envelopes contained cash after the

TSA agents had stopped Rafael and forced him to report his

currency.

On October 25, 2017, a grand jury in the District of

Massachusetts handed down a three-count indictment against Melo.

The indictment charged him with having engaged in conspiracy, in

violation of 18 U.S.C. § 371 (count one), bulk cash smuggling and

aiding and abetting, in violation of 31 U.S.C. § 5332(a) and 18

U.S.C. § 2 (count two), and structuring the export of monetary

transactions, in violation of 31 U.S.C. § 5324(c)(3) (count

three). A jury found him guilty on counts one and three. The

District Court subsequently sentenced Melo to one year of

probation. Melo timely filed his notice of appeal ten days later.

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 We start with Melo's challenge, based on Miranda v.

Arizona, 384 U.S. 436 (1966), to the District Court's denial of

his motion to suppress statements that he made to SAs Pauley and

Ryan during the August 30, 2017, interview. The District Court

rejected the motion on the ground that, although it was not "an

easy [case]," Melo did not need to be given the Miranda

warnings -- which were given only after he had been arrested

following the conclusion of that interview -- before or during the

interview because Melo was not then in custody.

When reviewing a district court's decision on a motion

to suppress, we consider its "conclusions of law de novo and its

factual findings, including its credibility determinations, for

clear error." United States v. De La Cruz, 835 F.3d 1, 5 (1st

Cir. 2016). In the Miranda context especially, we are reluctant

to disturb the district court's suppression decision, such that

"[i]f any reasonable view of the evidence supports the denial of

a motion to suppress, we will affirm the denial." United States

v. Boskic, 545 F.3d 69, 77 (1st Cir. 2008).

Because there is no dispute that the agents subjected

Melo to an interrogation through the questions that they asked

during the interview, see United States v. Sanchez, 817 F.3d 38,

44 (1st Cir. 2016) ("Interrogation for Miranda purposes includes

'any words or actions on the part of the police . . . that the

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police should know are reasonably likely to elicit an incriminating

response from the suspect.'" (quoting Rhode Island v. Innis, 446

U.S. 291, 301 (1980))), "the need for a Miranda warning" in this

case "turns on whether a suspect is in custody," United States v.

Swan, 842 F.3d 28, 31 (1st Cir. 2016) (quoting United States v.

Hughes, 640 F.3d 428, 435 (1st Cir. 2011)). We employ a two-step

process for making that determination.

"[T]he initial step is to ascertain whether, in light of

'the objective circumstances of the interrogation,' a 'reasonable

person [would] have felt he or she was not at liberty to terminate

the interrogation and leave.'" Howes v. Fields, 565 U.S. 499, 509

(2012) (second alteration in original) (first quoting Stansbury v.

California, 511 U.S. 318, 322-23 (1994) (per curiam) and then

quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). We have

previously identified a nonexhaustive number of circumstances that

are relevant to this aspect of our custody analysis, including

"whether the suspect was questioned in familiar or at least neutral

surroundings, the number of law enforcement officers present at

the scene, the degree of physical restraint placed upon the

suspect, and the duration and character of the interrogation."

Swan, 842 F.3d at 31 (quoting United States v. Masse, 816 F.2d

805, 809 (1st Cir. 1987)). In conducting this analysis, we must

keep in mind that a finding of custody "depends on the objective

circumstances of the interrogation, not on the subjective views

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harbored by either the interrogating officers or the person being

questioned." Stansbury, 511 U.S. at 323.

This inquiry into "whether an individual's freedom of

movement was curtailed, however, is simply the first step in the

analysis, not the last." Howes, 565 U.S. at 509. Once we complete

the freedom-of-movement step, we must still ask "the additional

question whether the relevant environment presents the same

inherently coercive pressures as the type of station house

questioning at issue in Miranda." Id.

In considering the circumstances in which the

questioning took place here, we note at the outset that the

interview was conducted in Melo's home. That is of some

significance because, although "a suspect's dwelling may at times

comprise a custodial interrogation, such a location generally

presents a less intimidating atmosphere than, say, a police

station." Hughes, 640 F.3d at 435-36 (internal citation omitted)

("[I]t is important to note that the interview occurred in

surroundings familiar to the defendant: his own home.").

In addition, we note, only two armed officers were

present for the questioning, see id. at 436 (finding that having

only two officers involved in the interview, even if two more were

present nearby, was not enough to make the interrogation

custodial), and neither one brandished his or her weapon in Melo's

presence during the questioning. The only other law enforcement

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personnel present, moreover, were two plainclothes computer

technicians who entered Melo's home to search his phone and

computers but had no direct contact with Melo.

Finally, we note two other features of the setting in

which the interview occurred that support the District Court's

custody ruling. The first is that, although the agents were in

Melo's home for more than three hours, they repeatedly interrupted

their questioning, at Melo's request, to ensure that his attorney,

Zajac, could participate by phone. The second is that the District

Court determined that the agents' tone during their questioning of

Melo was cordial and professional throughout the questioning.

Nevertheless, Melo contends that the District Court

erred in finding that the setting for the interview was not

custodial, in part because he contends that the record clearly

shows that the agents "communicate[d] . . . to Melo and his

attorney" their intention to arrest Melo if he "was not truthful

and cooperative." Melo asserts that this point is critical,

because even though "a police officer's subjective view that the

individual under questioning is a suspect, if undisclosed, does

not bear upon the question whether the individual is in custody

for purposes of Miranda," Stansbury, 511 U.S. at 324, when agents

do convey an intent to arrest the defendant, as he alleges clearly

occurred here, that fact should figure into the custody analysis.

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Yet, Melo contends, the District Court failed to factor the

statements that he alleges that the agents made into its analysis.

Even if we assume that Melo's legal contention about the

significance of the officers' alleged statements has force, cf.

id. at 325 ("An officer's knowledge or beliefs may bear upon the

custody issue if they are conveyed, by word or deed, to the

individual being questioned."), he still needs to show that the

District Court clearly erred in declining to find that those

officers in fact made those statements. To make that case, Melo

points to testimony that both he and his attorney Zajac gave at

the suppression hearing. Zajac testified, for example, that he

asked the agents "if their intention was to arrest [Melo]," to

which they responded that "they were unsure if they were going to

arrest [Melo] or not, it depended upon his cooperation." And Melo

testified to the same effect.

Moreover, Melo notes, neither of the agents denied in

their own testimony at that hearing that Zajac asked them whether

they intended to arrest Melo. Rather, they merely stated that

they could not remember Zajac asking that question. For example,

when asked if "Attorney Zajac asked you whether you were definitely

going to arrest [Melo]," SA Ryan responded that he did not "recall

that question being asked."

But, a review of the record shows that, although the

agents said they did not recall if Zajac specifically asked them

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whether they intended to arrest his client Melo, both agents were

unequivocal in stating that they did not convey an intention to

arrest Melo if he failed to cooperate. For example, when asked

whether it "[w]as . . . ever communicated to [Melo] that he was

going to be arrested if he didn't cooperate," SA Pauley responded,

"[n]o." In addition, SA Ryan affirmed that they never disclosed

their intention to arrest Melo that day.

Thus, nothing Melo points us to in the record indicates

that the District Court clearly erred in declining to find that

the agents expressed an intention to arrest Melo if he failed to

cooperate with their questioning, as Melo contends that they did.

See United States v. Martin, 749 F.3d 87, 97 (1st Cir. 2014) ("A

district court's plausible interpretation of the facts cannot be

rejected on clear error review just because the record might

sustain a conflicting interpretation.").

In addition, the record shows that Melo did not include

his assertion about the agents expressing an intent to arrest him

in his initial affidavit giving an account of the interview;

instead, he made this assertion for the first time at the hearing

on the motion to suppress. As a result, the District Court

supportably could have found that the account that Melo gave at

the hearing of what had transpired was less than convincing.

Considering the record as a whole, therefore, Melo's challenge to

the District Court's custody analysis fails insofar as it depends

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on the record requiring us to conclude that the agents told Melo

that he would be arrested if he did not cooperate with them during

the interview.

Melo nonetheless notes that, even if the District Court

did not err in declining to find that the agents expressed an

intention to arrest Melo if he failed to cooperate, the District

Court did find that the agents told Melo that he was a "target" of

their investigation. And, Melo asserts, "[t]hat disclosure,

alone, even without the statement about cooperation, is more than

sufficient to create a custodial situation."

To support that proposition, Melo cites to United States

v. Chan Hok Shek, No. CRIM.A. 08-10317-DPW, 2010 WL 4694448, at *7

(D. Mass. Nov. 10, 2010). But, Chan Hok Shek itself

states -- rightly -- that "even if" agents inform a defendant "that

he was a suspect, . . . that would not necessarily mean he was in

custody for purposes of Miranda." Id.; see also Stansbury, 511

U.S. at 325 ("Even a clear statement from an officer that the

person under interrogation is a prime suspect is not, in itself,

dispositive of the custody issue, for some suspects are free to

come and go until the police decide to make an arrest."). Thus,

the mere fact that the agents told Melo that he was a target of

their investigation does not, on its own, convince us that Melo

held an objectively reasonable belief that he could not terminate

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the interaction with the agents, such that the setting was

custodial.

To be sure, Melo contends that there is more in the

record to support a finding that he was in custody than that he

was told by the agents that he was a "target" of their

investigation. Melo argues, in particular, that if the District

Court had taken full account of the restraints on his movement

that he contends were placed on him while he was questioned by the

agents, then the agents' statement about him being a target of

their investigation, when combined with their having imposed those

restraints, compelled a finding that he was in custody during their

questioning of him.

To support that contention, Melo points to various

instances in which he argues the District Court either made an

erroneous factual finding, such as by concluding "that, during the

interview, Melo got up from his table and got water," even though

one of the agents testified to contrary, or failed to analyze

certain facts evidencing Melo's restricted movement, including an

unresolved dispute about whether Melo was free to get his own

diabetes medication. Melo further contends that the District Court

improperly considered the subjective beliefs of the agents in

dismissing the relevance of key facts concerning his freedom of

movement during the interview, such as when the District Court

concluded that SA Ryan watching Melo walk down the hallway to the

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bathroom had "more to do with the firearms that the agents knew

remained in the bedroom and [was] not indicative of restraints on

Melo akin to custody."

But, we are not persuaded. Melo's contention that the

District Court clearly erred in finding that he was free to get

himself water during the interview fails because there was ample

testimony at the suppression hearing to the effect that Melo was

free to get up and grab himself water. That the record also shows

that one of the agents once got water on Melo's behalf does not

persuade us that the District Court clearly erred in finding as it

did on that score, especially when the agents testified that they

never told Melo that he could not leave the kitchen table or

otherwise move about his home.

Melo is correct that the District Court failed to resolve

the factual dispute about whether Melo or one of the agents

retrieved Melo's diabetes medication during the interview. But,

given the other testimony that was provided at the hearing

regarding Melo's freedom of movement, which included undisputed

testimony that Melo did move around his home at various points

during the interview, we find the resolution of this one factual

dispute immaterial to the determination of whether the District

Court's overall custody analysis is supported by the record. See

Swan, 842 F.3d at 31; Boskic, 545 F.3d at 77 (noting that "we will

affirm the denial" of a suppression motion if there is "any

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reasonable view of the evidence [that] supports the" district

court's decision).

That leaves us with Melo's contention that the District

Court improperly analyzed the significance of SA Ryan monitoring

Melo as Melo proceeded to use the bathroom. But, even if we set

aside any consideration of the subjective motivation of the agents

and focus solely on the intrusiveness of the agents' monitoring,

see Hughes, 640 F.3d at 436 ("While escorting a suspect throughout

his home may have some bearing on the custody inquiry, there is no

evidence that the troopers followed the defendant so closely as to

intrude upon any intimate moment or private activity." (internal

citation omitted)), the District Court here found that SA Ryan

"observed [Melo] closely when he had to go to use the bathroom

. . . , but did not go into the bathroom with him." As Melo does

not argue that any aspect of the District Court's factual finding

on this point was erroneous, see United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990), we do not see how this finding suffices

to compel a conclusion that his movements were so restricted as to

warrant a finding that he had been placed in custody.

Finally, we reject Melo's contention that his case is no

different than United States v. Bullins, a district court case

from within this Circuit that found that a defendant who was

interrogated in his own home was in custody for Miranda purposes.

880 F. Supp. 76, 78-80 (D.N.H. 1995). In Bullins, police detained

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and separated the defendant and his wife, before executing a search

warrant on the defendant's home. See id. at 77. After the search

commenced, the defendant entered the home with the police and

agreed to speak with an officer for questioning. See id. But,

because the "defendant was directed to remain seated at his kitchen

table," the district court found that "[a]lthough he was neither

handcuffed nor formally placed under arrest at any time, defendant

was not free as a practical matter to either leave or move about

his home while the search was under way." Id. at 77-78. Meanwhile,

"[f]our or five agents, who were armed and dressed in raid jackets,

carried out the search." Id. at 78. These circumstances, the

district court concluded, placed the case "somewhere in the gray

area between a plainly custodial and plainly non-custodial

interrogation," but the district court ultimately found that the

setting was custodial. Id.

Melo posits that "most, if not all, of the Bullins

factors are present" in his case. Melo, however, was never told

that he could not leave the kitchen, his home was not full of armed

agents during the questioning, and there was no indication that

law enforcement purposely separated Melo from his wife at the

beginning of the interview. Rather, Melo's wife arrived at the

home after Melo was placed under arrest. Thus, even if we assume

that Bullins was rightly decided, it addresses a significantly

different setting from the one in which Melo was questioned.

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Accordingly, it supplies no basis for overturning the District

Court's denial of Melo's suppression motion.

Melo next challenges the District Court's decisions to

admit into evidence certain statements that Rafael made to

undercover agents before the November 10, 2015, trip to the Azores

and to admit records of Melo's phone contacts with Rafael and

Freitas from late March to December of 2015. Melo presses the

first part of his challenge under Federal Rule of Evidence

801(d)(2)(E),1 which provides that a statement is not hearsay when

it "is offered against an opposing party and . . . was made by the

party's coconspirator during and in furtherance of the

conspiracy." Melo brings the second part of his challenge under

Federal Rules of Evidence 403 and 404(b).

We start by considering his challenge to the admission

of Rafael's statements. We then turn to his challenge to the

admission of the phone records.

1
In its motion in limine, the government sought to admit
Rafael's statements that he: (1) "[h]ad off-the-book cash
transactions that were not reported to the IRS"; (2) relied on
Freitas to help him smuggle cash through the airport and that he
was friendly with Melo; and (3) "[o]n November 10, 2015, was caught
with cash he had to declare, but fortunately 'passed it to a lot
of people that were there with' him."

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 A.

Before the start of Melo's trial, the government filed

a motion in limine to admit certain statements that Rafael made to

federal agents both before and after the November 10, 2015, trip

to the Azores, pursuant to Rule 801(d)(2)(E). For a statement to

come into evidence under that rule, "[t]he proponent . . . must

prove, by a preponderance of the evidence, that the declarant and

the defendant were members of a conspiracy when the statement was

made, and that the statement was made in furtherance of the

conspiracy." United States v. Ford, 839 F.3d 94, 105 (1st Cir.

2016) (quoting United States v. Ciresi, 697 F.3d 19, 25 (1st Cir.

2012)). "A district court's determination 'as to whether this

burden has been met is known in this circuit as a Petrozziello

ruling,' after our holding in United States v. Petrozziello, 548

F.2d 20 (1st Cir. 1977)." Id. at 105-06 (quoting Ciresi, 697 F.3d

at 25). However, "[a] court may provisionally admit a statement

under Rule 801(d)(2)(E) and defer its final Petrozziello ruling

until the close of evidence." Id. at 106 (quoting United States

v. Paz-Alvarez, 799 F.3d 12, 29 (1st Cir. 2015)).

Though Melo opposed the motion, the District Court

conditionally admitted Rafael's pre-trip statements, assuming the

government could make a satisfactory showing that Rafael and Melo

were members of the conspiracy at the time of Rafael's statements

and that the statements were made in furtherance of the conspiracy.

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The District Court, however, excluded Rafael's post-trip

statements from evidence.

At trial, Melo's counsel did not object to the

conditional introduction of Rafael's pre-trip statements. And, at

the end of the government's case-in-chief, the District Court found

that the government had made the necessary showings under Rule

801(d)(2)(E) for the pre-trip statements to be admitted into

evidence. But, rather than object at that point, Melo chose to

renew his objection to the admission of Rafael's pre-trip

statements at the end of the trial, which the District Court once

again denied.

To preserve a challenge to a district court's

Petrozziello ruling, such that we review its findings for clear

error rather than plain error, see id., the defendant must "object

on hearsay grounds when his or her coconspirator's statement is

provisionally admitted and must renew the objection at the close

of evidence," Ciresi, 697 F.3d at 26. But here, Melo opposed the

government's motion in limine before trial and objected to the

statements' admission only at the close of evidence. Moreover,

Melo stated that he had "no objection" when the District Court

conditionally admitted the statements during the actual trial. By

failing to object to the conditional admission of Rafael's pre-trip

statements at that time, Melo failed to preserve his challenge.

We thus review his challenge to the District Court's Petrozziello

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ruling only for plain error. See United States v. Laureano-Perez,

797 F.3d 45, 65 (1st Cir. 2015).

Melo argues that the District Court erred in admitting

Rafael's pre-trip statements because they were made "prior to

Melo's alleged involvement in the conspiracy." In fact, Melo

contends, Rafael told the undercover investigators before the

November trip that Melo did not carry cash for him on flights.

But, "whether [the defendant] was a coconspirator at the

time the statements were made is irrelevant -- we have held that

an individual who joins a conspiracy 'at a later date, . . .

effectively adopt[s] coconspirator declarations previously made.'"

United States v. Flemmi, 402 F.3d 79, 94 (1st Cir. 2005) (second

alteration in original) (quoting United States v. Saccoccia, 58

F.3d 754, 778 (1st Cir. 1995)). Melo concedes as much, but

responds that his case is distinguishable because "the

coconspirator has disavowed [the] defendant's participation in the

conspiracy at the time the coconspirator uttered the statements."

Melo fails, however, to show how it is clear or

obvious -- or even right -- that this distinction has force and

thus that he can satisfy the plain error standard. See United

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

United States v. Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir.

2007), as "holding that plain error cannot be found in case law

absent clear and binding precedent."). That being so, we reject

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Melo's challenge to the introduction of Rafael's pre-trip

statements.

B.

That brings us to the District Court's decision to admit

certain of Melo's phone records, which the District Court admitted

into evidence on the first day of trial. Those records spanned a

period that ran from late March of 2015 to December of that same

year and demonstrated contacts between Melo's phone and phones

associated with, respectively, Rafael and Freitas.

Melo objected to the admission of the records under

Federal Rule of Evidence 403 on the ground that many of the

contacts between himself and Rafael or Freitas reflected in those

records predated the existence of the alleged conspiracy, which

the indictment alleged began in October of 2015. Melo emphasizes

in pressing this argument on appeal that there is nothing

inherently criminal about the placement of phone calls between

acquaintances. In consequence, he contends, the probative value

of the records of such contacts is slight at best.

The District Court overruled Melo's objection and noted

that any concerns about the records' weight or credibility could

be handled through cross-examination. The parties agree that

Melo's challenge to the admission of his phone records is preserved

and that we review the District Court's decision to admit the

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records for abuse of discretion. See United States v. Bradshaw,

281 F.3d 278, 284 (1st Cir. 2002).

We see none here, as we agree with the District Court

that Melo's phone records for the period from March to December of

2015 were relevant and not so prejudicial as to substantially

outweigh their probative value. After all, the fact that there

were contacts between the phones of Melo, Rafael, and Freitas shows

that these men were familiar with one another and communicated

semi-regularly. Moreover, our review of the phone records shows

that the average number of contacts per month between Melo's phone

and those of his alleged coconspirators greatly increased after

the commencement of the alleged conspiracy in October of 2015, a

fact that would only be apparent to the jury if it had before it

phone records that covered a period of time that predated the

alleged conspiracy. Given that the records at issue showed at

most that there were calls placed between the phones prior to the

conspiracy, as the record did not reveal the content of any calls

or other communications, it is hard to see how the records were

prejudicial to Melo in such a way that merits exclusion under Rule

403.2

2
We also note that Melo's argument necessarily concedes that
all of the phone contacts recorded after Melo allegedly joined the
conspiracy in October of 2015 were properly admitted. As such,
the only records that could be considered potentially prejudicial
are those covering March to September of 2015.

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 In any event, even if we were to assume there was a Rule

403 error, it would still be reviewed for harmlessness. See United

States v. Kilmartin, 944 F.3d 315, 338 (1st Cir. 2019) (noting

that error under Rule 403 only requires a new trial when "it is

'highly probable' that the error did not contribute to the

verdict." (quoting United States v. Fulmer, 108 F.3d 1486, 1498

(1st Cir. 1997))). And, we do not see, nor does Melo explain to

us, how the admission of evidence that shows fewer average phone

contacts between Melo and Rafael or Freitas in the period that

Melo contends predates the start of the alleged conspiracy than

occurred during the period that followed its start could, in light

of all the evidence, plausibly have been a difference maker in

this case.

Melo argues in the alternative that the phone records

were evidence of prior bad acts and thus that they were not

admissible under Federal Rule of Evidence 404(b).3 But, we do not

3 Rule 404(b) states that evidence of "crimes, wrongs, or
other acts" are to be treated as follows:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime,
wrong, or other act is not admissible to
prove a person's character in order to
show that on a particular occasion the
person acted in accordance with the
character.
(2) Permitted Uses; Notice in a Criminal
Case. This evidence may be admissible for
another purpose, such as proving motive,
opportunity, intent, preparation, plan,

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see how these phone records, which Melo himself asserts are

"innocuous" and which do not reveal the content of any call, can

constitute evidence of prior bad acts. It is a far cry from the

testimony that Melo points us to in United States v.

Martínez-Marcado, 919 F.3d 91, 101 (1st Cir. 2019), in which we

found that testimony about prior planned, but uncompleted,

conspiracies was not admissible under Rule 404(b). The testimony

in that case related to actual planned conspiracies to rob people's

homes that the defendant had led, while the evidence here does

nothing more than establish that there was contact by phone between

alleged coconspirators. Therefore, we reject Melo's Rule 404(b)

challenge as well.

Melo's next set of challenges is to the District Court's

refusal to issue certain jury instructions that he contends that

he requested. We do not find this set of challenges to have merit.

knowledge, identity, absence of mistake,
or lack of accident. On request by a
defendant in a criminal case, the
prosecutor must:
(A) provide reasonable notice of the
general nature of any such evidence
that the prosecutor intends to offer
at trial; and
(B) do so before trial--or during
trial if the court, for good cause,
excuses lack of pretrial notice.

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 First, he argues that the District Court should have

given the jury an instruction -- pursuant to Commonwealth v.

DiGiambattista, 813 N.E.2d 516 (Mass. 2004) -- that would have

allowed it to draw an adverse inference against the government

from SAs Pauley and Ryan's failure to record their interview with

Melo. Melo made this request prior to the charge conference. The

District Court denied the request but did instruct the jury to

consider the circumstances surrounding Melo's statements as it

weighed the evidence.

Following the charge conference, however, Melo asked the

District Court to modify its proposed instruction so that the jury

would need to find that he made his statements to the agents

voluntarily and that, if the jury found the statements were made

involuntarily, the statements must be disregarded. The District

Court also denied this request. In doing so, the District Court

suggested that the voluntariness of Melo's statements was an issue

for it, and not the jury, to decide.

The District Court then charged the jury. At that point,

Melo's counsel told the District Court that he was "renew[ing]"

his objections to the District Court's refusal to issue his

requested instructions.

For preserved jury instruction challenges, "this court

reviews de novo 'whether the instructions conveyed the essence of

the applicable law' and reviews for abuse of discretion 'whether

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the court's choice of language was unfairly prejudicial.'" United

States v. Silva, 742 F.3d 1, 10 (1st Cir. 2014) (quoting United

States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012)). However, the

government contends that Melo failed to preserve his challenge to

the District Court's failure to issue a DiGiambattista or

voluntariness instruction, as the government contends that Melo's

objection after the charge was given was not sufficient to meet

the demands of Federal Rule of Criminal Procedure 30(d). See

United States v. Roberson, 459 F.3d 39, 45 (1st Cir. 2006) ("To

preserve an objection to a jury instruction under Fed. R. Crim. P.

30(d), a litigant must lodge a specific objection and state the

grounds for the objection after the court has charged the jury and

before the jury begins deliberations. Objections registered

during pre-charge hearings are insufficient to preserve the

issue." (internal citation omitted)).

We need not resolve this dispute over the standard of

review here, however. Melo's DiGiambattista challenge runs

squarely into our precedent that "there is no federal

constitutional right to have one's custodial interrogation

recorded," United States v. Meadows, 571 F.3d 131, 147 (1st Cir.

2009), and that declines to require the use of such instructions

under our supervisory power, see id.

Melo argues in response that Meadows does not govern

here because, unlike in that case, the District Court refused to

- 26 -
instruct the jury to determine whether Melo voluntarily made his

statements to the agents. The fact that we previously declined to

require the use of DiGiambattista instructions in Meadows had

little to do, however, with the fact that the jury in that case

was instructed to consider voluntariness. We referenced that

separate instruction merely to explain why there was, in any event,

little prejudice to the defendant caused by the lack of the

requested instruction. See id.

Melo also challenges the District Court's refusal to

instruct the jury that it had the power to determine whether Melo's

statements were voluntarily made. We have made it clear, however,

that the question of whether a defendant voluntarily made a

statement to police is for the district court -- and not the

jury -- to decide. See United States v. Feliz, 794 F.3d 123, 130

(1st Cir. 2015). So, this challenge also fails.

We next must address Melo's challenges to the District

Court's decisions to limit his ability to argue that he was the

only person charged for the events that occurred on November 10,

2015, and to not issue a curative instruction after a witness had

mentioned Rafael's and Freitas' convictions. We are not persuaded

by these arguments, either.

The following facts are relevant to our assessment of

these challenges. Melo requested, via a motion in limine, that

- 27 -
the District Court prohibit the government from introducing any

evidence regarding Rafael's and Freitas' convictions arising from

the cash-smuggling conspiracy. The District Court denied the

motion as moot after the government represented that it did not

intend to admit such evidence during trial.

Then, during opening arguments, Melo's counsel told the

jury that Melo was the only person being prosecuted for what

occurred on November 10, 2015. The government did not immediately

object, but it later brought the issue to the attention of the

District Court and objected that Melo's statement mischaracterized

the nature and outcome of the investigation. In response, the

District Court apparently prohibited Melo from making that

argument.

On the fourth day of trial, Melo's counsel called his

previous supervisor, Bristol County Sheriff Thomas Hodgson, as a

witness. Melo's counsel asked Hodgson during his testimony whether

Hodgson continued to use Melo as a driver even after learning of

the investigation into Melo's alleged role in Rafael's scheme.

Hodgson responded, "I don’t remember when Carlos Rafael was

convicted, Antonio Freitas was convicted."

After Hodgson left the stand, Melo requested that the

District Court issue a curative instruction that Rafael's and

Freitas' "convictions were not related to this case," to which the

government objected. When the District Court said that it was

- 28 -
inclined to do no more than offer an instruction that Melo was the

only person on trial, Melo indicated that he was no longer pressing

for his more specific curative instruction.

In a motion for reconsideration filed later that day,

however, Melo asked the District Court to reverse both its decision

to prohibit him from arguing that Melo was the only person being

prosecuted for the events on November 10, 2015, and its decision

to refuse to give the specific curative instruction that he had

requested. The District Court denied the motion, stating both

that it would be misleading to allow Melo to argue that he was the

only person being prosecuted for the events of November 10, 2015,

when all three men were being investigated at the same time, and

that the curative instruction Melo requested would unnecessarily

attract more attention to the problematic testimony.

A.

We consider first Melo's challenge to the District

Court's decision to prohibit him from arguing that he was the only

one arrested in connection with the events of November 10, 2015.

Because Melo made this argument in his motion to reconsider, we

review this challenge for abuse of discretion. See United States

v. Allen, 573 F.3d 42, 53 (1st Cir. 2009).4

4 To the extent Melo's original objection to the District
Court's decision to prohibit his argument is preserved, we would
still review that decision for abuse of discretion, see United

- 29 -
 As best we can tell, Melo's argument is that Rafael's

and Freitas' indictments did not encompass the events of November

10, 2015. From that premise, Melo contends that he should have

been allowed to argue that he alone was prosecuted over this

particular trip to the Azores. But, we agree with the District

Court that it would have been misleading to allow such an argument.

Allowing Melo to do so would have given the jury the false

impression that the government was ignoring other culpable actors

in its focus to prosecute Melo. The reality, of course, was that

all of the major actors in the conspiracy were investigated and

prosecuted. As such, we do not find that the District Court abused

its discretion in preventing Melo from making this argument. See

United States v. Callipari, 368 F.3d 22, 37 (1st Cir. 2004) (noting

that the district court "was well within its discretion" to limit

the defendant's ability to make an argument that "would have

misdirected the jury"), judgment vacated on other grounds, 543

U.S. 1098 (2005).

B.

Melo's challenge to the denial of his curative

instruction fares no better. This Court reviews preserved

challenges to a district court's refusal to offer a curative

instruction for abuse of discretion. See United States v.

States v. Burns, 298 F.3d 523, 543 (6th Cir. 2002), and the outcome
would remain the same.

- 30 -
Belanger, 890 F.3d 13, 32 (1st Cir. 2018). However, Melo waived

his original request for a curative instruction when he told the

District Court that he was no longer pressing that point, given

the alternative instruction that the District Court adopted. See

United States v. Orsini, 907 F.3d 115, 120 (1st Cir. 2018) ("'A

party who identifies an issue, and then explicitly withdraws it,

has waived the issue' and cannot resurrect it on appeal." (quoting

United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002))).

As such, his original challenge is waived.

To the extent Melo appeals the denial of his motion for

reconsideration on this point, we review the District Court's

denial of that motion for abuse of discretion. See Allen, 573

F.3d at 53. But, in his briefing to us, Melo fails to explain how

the reconsideration standard applies to his claim or to argue how

he could meet it. See id. (noting that "motions for

reconsideration are appropriate only in a limited number of

circumstances: if the moving party presents newly discovered

evidence, if there has been an intervening change in the law, or

if the movant can demonstrate that the original decision was based

on a manifest error of law or was clearly unjust"). As a result,

his arguments are waived. See United States v. Brown, 621 F.3d

48, 53 n.4 (1st Cir. 2010).

Even if we were to reach the merits of his challenge,

moreover, we would reject it. This Court generally recognizes

- 31 -
that trial courts are in the best position to determine if a

curative instruction would do more harm than good, and Melo points

us to no authority that indicates that, in these circumstances, we

should decline to defer to the District Court. See United States

v. Rivera-Rodríguez, 761 F.3d 105, 128 (1st Cir. 2014) (finding no

abuse of discretion where a district court declined to give a

curative instruction after a witness made an improper "stray

remark" about the defendant's criminal records).

Melo's final pair of related challenges is to the

District Court's decision to issue a willful blindness instruction

to the jury in relation to Melo's involvement with the cash

envelopes and to the District Court's refusal to issue an

instruction defining reasonable doubt. Again, we find no merit to

the challenges.

The relevant facts are these. At trial, Melo opposed

the issuance of any willful blindness instruction. However, he

did request that, if the District Court decided to issue the

willful blindness instruction, the District Court modify the

instruction so as to inform the jury that "mere negligence,

mistake, or recklessness in failing to learn the fact is not

sufficient" to constitute willful blindness and that it issue an

instruction defining the meaning of reasonable doubt.

- 32 -
 The District Court agreed to Melo's requested willful

blindness instruction modification but refused to instruct the

jury as to the meaning of reasonable doubt. After the District

Court charged the jury, Melo's counsel stated no more than that he

renewed his objections to each of the District Court's instructions

on these points.

A.

We first consider the challenge to the willful blindness

instruction. "A willful blindness instruction is justified if

'(1) a defendant claims a lack of knowledge, (2) the facts suggest

a conscious course of deliberate ignorance, and (3) the

instruction, taken as a whole, cannot be misunderstood as mandating

an inference of knowledge.'" United States v. Valbrun, 877 F.3d

440, 445 (1st Cir. 2017) (quoting United States v. Azubike, 564

F.3d 59, 66 (1st Cir. 2009)).

Melo argues that these factors were not met in his case.

But, even if we assume that Melo's challenge to the instruction is

preserved, notwithstanding the requirements for preserving it set

forth in Federal Rule of Criminal Procedure 30, see United States

v. O'Connor, 28 F.3d 218, 220-21 (1st Cir. 1994), it lacks merit.

As to the first element that bears on the propriety of

giving the instruction, Melo himself claims that he lacked

knowledge of what was in the envelopes Rafael handed to him.

Moreover, the facts suggest that the second element was met as

- 33 -
well, as they show that if Melo did not know what was in the

envelopes, he took pains not to apprise himself of the envelopes'

contents. Being asked to carry envelopes for another person at

the airport, and then being told to pick up the envelopes in a

bathroom to avoid detection, reasonably qualify as "red flags."

As to the third element, the modified instruction that Melo

obtained made it clear to the jury that anything less than

knowledge or purpose was not sufficient for finding willful

blindness.

B.

There remains, then, only Melo's challenge to the denial

of his reasonable doubt jury instruction request. Melo asserts

that "a case where the government relied so heavily on the concept

of willful blindness required an explanation of reasonable doubt

to counteract the misleading nature of the charge and the evidence.

Due process requires no less." But, he provides no support for

this proposition, and, in fact, our precedent is clearly to the

contrary. See United States v. Jones, 674 F.3d 88, 94 (1st Cir.

2012) (holding that a trial judge "was not required to define

reasonable doubt" where the defendant objected that the judge's

instructions to the jury were ambiguous). Thus, this challenge,

too, fails.

We affirm the convictions below in all respects.

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