U.S. v. VERDUGO

nda] warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will [does not] so taint[] the [later] investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period." 544 F.3d 351, 360 (1st Cir. 2008) (quoting Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)). Thus, where law enforcement officers have not engaged in coercive or improper tactics in obtaining an initial statement, but merely failed to advise a defendant of his Miranda rights, "determining the admissibility of a subsequent statement is relatively straightforward. Such a statement is admissible if it was obtained after the defendant: (1) was advised of his or her Miranda rights; and, (2) knowingly and voluntarily waived those rights." United States v. Marenghi 109 F.3d 28, 32 (1st Cir. 1997).

Verdugo cites Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), in support of his argument that his second statement was "tainted" by the first because the circumstances surrounding both statements undermined the effectiveness of the warnings that were given before the second statement was made. Seibert involved the deliberate use of a two-step interrogation technique in which the suspect was questioned first without the benefit of Miranda warnings and then was advised of his rights and questioned again after a confession was obtained. Id. at 605-06, 124 S.Ct. 2601. In determining that both statements should have been suppressed, a plurality of the court focused on the circumstances under which the statements were made and identified the "threshold issue" as "whether it would be reasonable to find that in these circumstances the warnings could function `effectively' as Miranda requires." Id. at 611-12, 124 S.Ct. 2601. Justice Kennedy supplied the fifth vote for the result in a more narrowly reasoned opinion that hinged on the admitted fact that the police had used the two-step interrogation technique "in a calculated way to undermine the Miranda warning." Id. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring). When we recently considered Jackson again following the district court's ruling on remand, we declined to determine whether Seibert's reach is limited to cases in which the police set out to subvert a suspect's Miranda rights because the post-Miranda statement at issue in Jackson was admissible even under the Seibert plurality's more context-sensitive test. United States v. Jackson, 608 F.3d 100, 104 (1st Cir. 2010). We follow the same path here.

In the present case, the district court correctly concluded that Verdugo's interrogation at the rest area differed substantially from the two-step interrogation technique that the Supreme Court condemned in Seibert. In Seibert, the defendant was awakened in the middle of the night, arrested, transported to a police station, and questioned for 30 to 40 minutes until she confessed. Officers then gave the defendant a 20-minute break, administered Miranda warnings, and immediately confronted her with her pre-warning statements. See Seibert, 542 U.S. at 604-05, 124 S.Ct. 2601. Here, in contrast, Verdugo was asked only a limited number of questions before he was read his Miranda rights, the bulk of the post-Miranda questioning occurred at a different location than the pre-Miranda questioning, and Verdugo made his second statement and signed the Property Inventory form over an hour after he first admitted to MacIsaac that the ringing cell phone was his. See United States v. Materas, 483 F.3d 27, 33 (1st Cir. 2007) (finding a subsequent confession untainted where police asked the defendant only one question before reading him his Miranda rights, at another location, fifteen minutes later). These circumstances do not call into serious question the effectiveness of the Miranda warnings that Verdugo received before he made his second admission. The district court therefore committed no error in refusing to suppress Verdugo's post- Miranda statements based on Seibert.

Verdugo also claims that his post-Miranda statement was involuntary even if it was not tainted by his first statement. The circumstances surrounding Verdugo's questioning, however, contain no traces of the "brutality, [psychological duress, threats, [or] unduly prolonged interrogation" that courts have previously found when they have concluded that statements were involuntarily made. See Jackson, 608 F.3d at 102-03; see also Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (only admissions procured by coercive official police tactics are to be excluded as involuntary); Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968) (confession involuntary where defendant was interrogated for over 18 hours without food, sleep, or necessary medication); Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967) (confession coerced where police held a gun to defendant's head and interrogated him while he was in the hospital and under the influence of morphine); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (confession coerced where defendant was held incommunicado for three days with limited food and threatened with attack from a lynch mob). Verdugo made his post-Miranda admission and signed the inventory form in an open room where he was no longer handcuffed, and he was not subject to prolonged questioning, threats, or duress. Thus, the evidence simply does not support Verdugo's claim that his post-Miranda statement was involuntary. See United States v. Byram, 145 F.3d 405, 408 (1st Cir. 1998) (finding no evidence of coercion where police did not threaten violence or serious retaliation, the questioning was not prolonged, and the surrounding atmosphere "appear[ed] to have been benign").

Verdugo also argues that the Miranda warnings he received at the rest area do not cover his admission at the Northampton barracks, but he provides no legal analysis or case law to support this proposition. Accordingly, we deem this argument waived because it has not been adequately developed on appeal. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

c. Verdugo's Pomona Admission

Verdugo argues that the court should have suppressed the statement that he made when he was arrested because the government failed to prove that he was advised of his Miranda rights before he made the statement. He also faults the court for failing to investigate whether his statement was voluntarily made. Neither argument has merit.

Verdugo's first argument challenges the district court's decision to credit the testimony of Agents Naylor and Cardello, who both claimed during the suppression hearing that Verdugo waived his Miranda rights and agreed to speak with them when he was arrested. This argument challenges a credibility assessment made by the district court and such matters are reviewed only for clear error. United States v. Andrade, 551 F.3d 103, 109 (1st Cir. 2008). Verdugo cannot possibly succeed under this deferential standard, because the district court had ample evidentiary support for its determination that Verdugo was advised of his Miranda rights.

Verdugo's second argument fares no better. The court had no reason to make specific findings on the issue of voluntariness because Verdugo based his suppression argument solely on the agents' alleged failure to administer Miranda warnings. In any event, the only evidence in the record that in any way supports Verdugo's contention that his statement was involuntary comes from his own testimony, which the district court reasonably found to be incredible. Thus, the district court did not err in refusing to suppress Verdugo's Pomona admission.

2. Fernández

The only suppression issue that Fernández pursues on appeal is his claim that the district court improperly refused to suppress his statement to Arnold at the Charlton Police Barracks. First, he contends that the court should have excluded his statement because the government failed to prove during the suppression hearing that Fernández affirmatively waived his Miranda rights before responding to agents' questions. Next, he claims that the court violated his right to due process by failing to rule on his motion to suppress until the third day of trial. We address each argument in turn.

a. Waiver Claim

Fernández does not take issue with the district court's findings that Arnold read Fernández his Miranda rights and that Fernández understood his rights, nor does he dispute the court's determination that the record contains no evidence that "the [defendant's decision to answer . . . questions was influenced by intimidation, coercion, or deception[] . ." Fernández-Roque, 2008 WL 2148750, at *3. Instead, he rests his argument entirely on the fact that the government did not prove at the suppression hearing that Fernández affirmatively waived his Miranda rights before he responded to questions. The problem with this argument is that it fails to take account of the fact that the court relied on Arnold's trial testimony that Fernández affirmatively waived his Miranda rights when it ultimately upheld its decision to admit Fernández's statement. Fernández-Roque, 2008 WL 2845044, at *4. • Because Fernández does not challenge the district court's decision to rely on trial testimony to fill what Fernández claims is a gap in the suppression hearing record, he is in no position to argue that suppression is required because of the claimed gap.

Because the district court based its ruling on evidence in the trial record that Fernández affirmatively waived his Miranda rights, we need not consider whether his statement could have been admitted even in the absence of an affirmative waiver. See Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, 2264, 176 L.Ed.2d 1098 (2010) (recognizing that "a suspect who has received and understood the Miranda warnings, and has not' invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.").

b. Timing Claim

Fernández also presents an unconvincing claim that the district court committed reversible error in failing to rule on his motion to suppress before trial. Because Fernández raises this claim for the first time on appeal, we review it for plain error. United States v. Rodriguez-Lozada, 558 F.3d 29, 38 (1st Cir. 2009). To satisfy the plain error standard, Fernández "must show an error that was plain (i.e., obvious and clear under current law), prejudicial (i.e., affected the outcome of the district court proceedings), and that seriously impaired the fairness, integrity, or public reputation of the judicial proceedings." United States v. Rivera Calderon, 578 F.3d 78, 95 (1st Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1107, ___ L.Ed.2d ___ (2010) (quoting United States v. Griffin, 52A F.3d 71, 76 (1st Cir. 2008)). Although Fernández points to the fact that Fed.R.Crim.P. 12(d) ordinarily requires a motion to suppress to be resolved before trial, he cites no case law to support his claim that a delayed suppression ruling can give rise to a due process violation. This failure alone has doomed other claims that were subject to plain error review. See, e.g., United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008); United States v. Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007). Moreover, Fernández has failed to present a persuasive argument that he was prejudiced by the timing of the court's suppression ruling. Without evidence of prejudice, Fernández simply cannot succeed on a claim that is subject to plain error review. See United States v. Perez-Cruz, 558 F.3d 50, 53 (1st Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 183, 175 L.Ed.2d 115 (2009).

B. Trial Issues

1. Interpretations of Intercepted Conversations

Verdugo cites 32 instances in which he claims that the district court erred in allowing Naylor to testify concerning his interpretation of words and phrases used by the conspirators during their intercepted conversations. The only time Verdugo actually objected to a proposed interpretation, however, was in response to Naylor's innocuous explanation that he had initially misinterpreted Verdugo's statement about seeing "some guys" at the rest area to mean that Verdugo had spotted the surveillance team. Verdugo otherwise failed to object to Naylor's interpretations and, when the court called counsel to the bench to express concern as to why counsel was not objecting, counsel informed the court that "[he] just wanted the court to know [his] reason was [that he] didn't want to limit [his] cross-examination with respect to these phone calls because [he] d[id] intend to question [Naylor] about certain calls." The government argues that counsel's decision not to object to Naylor's interpretations results in a waiver of Verdugo's right to challenge the interpretations on appeal. We agree,

As we have noted, claims that are not preserved in the trial court typically are reviewed for plain error. United States v. Medina, 427 F.3d 88, 91 (1st Cir. 2005). An intentional relinquishment of a claim, however, results in a complete waiver of the right to raise the claim on appeal. Id. (finding that defendant waived his right to object to the admission of physical evidence on appeal where his counsel told the judge at a bench conference during trial that he had "no objection to [the evidence] coming in"); see also United States v. Washington, 434 F.3d 7, 11 (1st Cir. 2006) (defense counsel waived the right to object to the admission of telephone calls at trial where he made the "deliberate strategic choice" to play them to the jury to discredit the prosecution's chief witness). Here, Verdugo's counsel made a tactical choice not to object to Naylor's interpretations in order to lay the groundwork for later cross-examination. Having made this choice, Verdugo cannot now challenge the court's failure to exclude Naylor's interpretations on appeal.

2. Videotape of Verdugo's Interrogation

Verdugo next claims that the district court improperly barred him from using the videotape of his interrogation at the Pomona police station to impeach Naylor's trial testimony. Naylor testified on direct examination about the statement Verdugo made when he was arrested, but the subject of the videotaped statement did not come up until cross-examination, when the following exchange occurred:

Q. He [Verdugo] didn't admit to anything [during the videotaped statement], either, am I correct sir?

A. I don't know — he didn't admit to it. He said he wanted a lawyer. He said, the only thing I can talk about is against myself. I'm not sure if he admitted it. But I know I talked to him about what we talked about on the scene. So I don't know exactly what was admitted to on tape again. I don't really remember. But I remember speaking to him. He didn't deny what I talked about on the street, if that's what you mean[,] sir.

(Trial Tr. vol. 2, 111, Apr. 8, 2008.)

At that point, Verdugo's counsel asked the court for permission to play the video-tape, arguing that the tape was admissible because it contradicted Naylor's testimony. The court denied counsel's request because it concluded that "what [Naylor] . . . said about [the] interview is not inconsistent with what the video shows." ( Id. at 120.) We agree with the district court.

A party ordinarily may introduce extrinsic evidence to impeach testimony by contradiction if the extrinsic evidence concerns a subject that is not collateral to the issues being tried. United States v. Cruz-Rodriguez, 541 F.3d 19, 30 (1st Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1017, 173 L.Ed.2d 306 (2009). Here, however, the videotape was properly excluded whether or not it was collateral because it simply did not contradict Naylor's testimony. The only portion of the videotape that arguably bears on the issue of Naylor's credibility is the following exchange:

Naylor: I know we spoke for a few minutes on the street. And you said that you never brought any money back . . . that time. And were talking like that. I just wanna, you know . . . so I understand we talked about that on the street. And we talked about um. .[.] the 29 kilos that you brought there. That's the stuff we talked about on the street. We're not going to talk about this now, do you understand. Cause you're saying now you need a lawyer. But on the street when you were talking to me about that. .[.] um, um. .[.] that's why you're being brought up here. Do you understand? That's why we're here from Rhode Island. You understand that[,] correct?

Verdugo I don't know what you're talking about.

In responding to Naylor, Verdugo disclaimed knowledge about their prior discussion, but he did not deny his alleged role in the conspiracy. Thus, the video-tape is consistent with Naylor's testimony that Verdugo "didn't deny what [Naylor] talked about on the street."

Verdugo also incorrectly claims for the first time on appeal that the court should have admitted the videotape pursuant to the rule of completeness embodied in Fed.R.Evid. 106. The short answer to this claim is that Rule 106 does not apply to testimony about unrecorded oral statements such as the one that Verdugo gave to Naylor and Cardello when he was arrested. United States v. Lopez-Medina, 596 F.3d 716, 734 (10th Cir. 2010). In any event, while the district court retained substantial discretion under Fed.R.Evid. 611(a) to apply the rule of completeness to oral statements, id., Naylor cites no case law that supports the use of the rule under these circumstances. The rule of completeness ordinarily comes into play when a statement is offered to explain another statement that is being admitted into evidence. See Fed.R.Evid. 106 advisory committee's note ("The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial"). It does not ordinarily allow otherwise inadmissible evidence to be used to create doubt as to whether the admitted statement was ever made. Accordingly, the district court did not commit plain error in refusing to admit the video-tape under the rule of completeness.

3. The Mere Presence Jury Instruction

Fernández faults the district court for delivering its own jury instruction explaining the concept of "mere presence" rather than the instruction that Fernández proposed. This type of claim can succeed only in the "relatively rare case" where "the requested instruction was (1) substantively correct; (2) not substantially covered elsewhere in the charge; and (3) concerned a sufficiently important point that the failure to give it seriously impaired the defendant's ability to present his or her defense." United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009) (quoting United States v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001)). We review the instruction given "not in isolation but in the context of the entire charge" in determining whether the district judge clearly conveyed the relevant legal principles, and remain "mindful that the district court has considerable discretion in how it formulates, structures, and words its jury instructions." Id.

Fernández requested the following jury instruction:

Mere presence at the scene of a crime or mere association with the co-conspirators will not themselves support a conspiracy conviction. Mere presence at the scene of the crime and knowledge that a crime is being committed are also not sufficient to establish a defendant's guilt.

The district court declined to charge the jury as he requested, and instead issued the following instructions:

Mere presence at the scene of a crime is not alone enough, but you may consider it among other factors. Intent may be inferred from the surrounding circumstances.

. . .

[M]ere presence at the scene of a crime, or merely knowing that a crime is being committed or is about to be committed, is not sufficient conduct to find the defendant committed that crime. However, the law recognizes a difference between mere presence and culpable presence in the context of drug trafficking activities. While mere presence is not sufficient to base criminal charges, a defendant's presence at the point of a drug sale taken in light of attendant circumstances can constitute strong evidence of complicity, Thus[,] you must evaluate the circumstances of this case in order to determine the quality of the defendant's presence at a location where drugs are found. This will assist you in determining whether the defendant was merely present or culpably present.

The district court's own "mere presence" instruction was an entirely accurate recitation of First Circuit case law that more than adequately explained the concept to the jury, particularly when viewed within the context of the entire jury charge. Fernández alleges that the district court's instruction diminished the importance of his "willful participation" in the conspiracy. "Willful participation," however, was addressed in great detail elsewhere in the jury charge; in fact, the court instructed the jury as to the government's burden of proving that Fernández "willfully" joined the conspiracy immediately after it explained the concept of "mere presence." Thus, the court did not err in refusing to give Fernández's mere presence instruction because the court's own instruction adequately covered the issues that Fernández sought to cover with his instruction.

III.

For the foregoing reasons, we affirm the district court's denial of defendants' motions to suppress. We further determine that Verdugo waived his right to object to Naylor's interpretive testimony, that the court properly excluded Verdugo's video-taped statement, and that the court's "mere presence" instruction was a suitable substitute for Fernández's proposed instruction on the subject. Both defendants' convictions are affirmed.

Verdugo also argues that (1) he was denied the effective assistance of counsel, (2) his sentence of 151 months was unreasonable, (3) the court's instruction that the jury could find Verdugo guilty if the object of the conspiracy was either to possess cocaine with intent to distribute or to distribute cocaine was improper because the indictment was phrased in the conjunctive, and (4) the verdict was not supported by substantial evidence. These arguments do not require extended discussion. Verdugo's ineffective assistance claim is pre-mature. See United States v. Martins, 413 F.3d 139, 155 (1st Cir. 2005). He has not given this court sufficient grounds to second-guess the district court's sentencing judgment. See United States v. Morales-Machuca, 546 F.3d 13, 25 (1st Cir. 2008) (explaining that a defendant carries a "heavy burden" when claiming on appeal that his sentence is unreasonable). The court's multiple-object conspiracy instruction is unassailable. See United States v. Gerhard, 615 F.3d 7, 9 (1st Cir. 2010)("we have routinely affirmed the use of the conjunctive in indictments followed by the use of the disjunctive in jury instructions"). evidence was produced at trial to support the Finally, as the record demonstrates, abundant verdict.