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United States v. Cascella

United States Court of Appeals, First Circuit

November 12, 2019

UNITED STATES OF AMERICA, Appellee,
v.
JON CASCELLA, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND Hon. William E. Smith, Chief U.S. District Judge

          Ines de Crombrugghe McGillion, with whom Ines McGillion Law Offices, PLLC was on brief, for appellant.

          Donald C. Lockhart, Assistant United States Attorney, with whom Aaron L. Weisman, United States Attorney, was on brief, for appellee.

          Before Torruella, Lipez, and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         Jon Cascella was tried and convicted on seven counts related to possession and distribution of methamphetamine and two counts related to possession of a firearm. His defense at trial was that he was entrapped by law enforcement officers and a confidential informant acting as their agent. On appeal, he claims that the following trial errors require reversal: (1) the court allowed the confidential informant to invoke a blanket Fifth Amendment privilege from testifying; (2) the government did not provide Cascella with certain telephone records showing communications he had with the confidential informant and an undercover officer; and (3) the government's attorney made improper statements during closing arguments. For the following reasons, we affirm Cascella's conviction.

         I.

         Between March and May 2017, Cascella sold methamphetamine on six occasions to undercover police detective Mark Perkins of Warwick, Rhode Island. Cascella was introduced to Perkins by Bennett, a confidential informant who had recently been released from prison on probation.

         The first transaction between Perkins and Cascella occurred on March 29. On that occasion, Perkins purchased a small quantity of methamphetamine for $100 outside a gas station. After receiving payment, Cascella told Perkins that he had placed the methamphetamine in the gas-station bathroom, from which Perkins then retrieved the drugs. Around this time, Bennett informed Perkins that Cascella was also interested in acquiring a firearm.

         Perkins again purchased methamphetamine from Cascella on April 4, April 13, April 20, and April 28. The government attempted to record telephone conversations between Perkins and Cascella leading up to each of these purchases, although the equipment failed to record some of these conversations. Some of the drug exchanges were also recorded on video. According to Perkins, the Warwick Police Department does not normally record phone calls. The Department nevertheless began recording the interactions with Cascella on March 30 at the request of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) due to the "possible involvement" of a firearm.

         The sixth and final transaction between Perkins and Cascella occurred on May 4. Perkins, with the help of undercover ATF agent Wing Chau, had arranged a drugs-for-firearm trade. Cascella gave Chau approximately seven grams of methamphetamine, and Chau gave Cascella a Bryco .380 handgun and $600 cash. Officers arrested Cascella immediately after this transaction. A search of Cascella's home later that day turned up additional methamphetamine and a smoke grenade. Following his arrest, Cascella told the police that he had been selling drugs to four different customers and that he wanted a gun for protection because he had previously been robbed.

         A grand jury indicted Cascella on nine counts: four counts of distribution of methamphetamine to Perkins on March 29, April 4, April 13, and April 20 in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); two counts of distribution of five grams or more of methamphetamine to Perkins on April 28 and May 4 in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); one count of possession with intent to distribute five grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); one count of possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A); and one count of being a felon[1] in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

         The government's evidence that the drug and gun transactions occurred, backed by videos, phone recordings, and the testimony of Perkins and Chau, was overwhelming. Cascella nevertheless pleaded not guilty and went to trial, contending that he was merely a drug user whom Bennett and Perkins entrapped into selling drugs and buying a firearm. Cascella proceeded pro se with standby counsel for part of the trial, then switched to hybrid representation partway through. After closing arguments, the jury returned a verdict of guilty on all counts. The court denied Cascella's motions for a new trial and acquittal. Cascella timely appealed.

         II. A. Privilege Against Self-Incrimination

         Cascella challenges the district court's decision allowing the confidential informant, Bennett, to avoid taking the stand at trial based on a blanket assertion of his Fifth Amendment right not to incriminate himself. Reliance on a blanket assertion of privilege that deprives a defendant of his ability to call a relevant witness to testify is "extremely disfavored." In re Grand Jury Matters, 751 F.2d 13, 17 n.4 (1st Cir. 1984) (quoting In re Grand Jury Witness (Salas), 695 F.2d 359, 362 (9th Cir. 1982)); see United States v. Santiago, 566 F.3d 65, 70 (1st Cir. 2009); United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1997). We have nevertheless at least once allowed such a blanket assertion of privilege when the district court itself confirmed the witness's inability to offer any relevant, non-privileged testimony. See United States v. Acevado-Hernández, 898 F.3d 150, 168-71 (1st Cir. 2018). And we have also on one occasion sustained a similar decision made after the district court interrogated the witness and determined that any non-privileged testimony would be confusingly disjointed and would not substantially advance an entrapment defense. See Santiago, 566 F.3d at 70-71.

         Here, the district court neither questioned the witness, nor allowed counsel to question the witness, relying instead on the representations of the witness's appointed counsel, whose understandable aim was to keep his client off the stand. Nevertheless, we need not decide whether the handling of the privilege-pleading witness was error. Rather, we agree with the government that even if there was error, it was harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986); see also United States v. Kaplan, 832 F.2d 676, 685 (1st Cir. 1987) (deciding an improper assertion of privilege was harmless error).

         Cascella's only proffered reason for calling the witness was to aid his entrapment defense. To Cascella's benefit, the trial judge let the entrapment defense go to the jury. For the following reasons, though, the entrapment defense was so weak that it need not have gone to the jury, even with the evidence that Cascella claims he might have secured from Bennett.

         "Entrapment is an affirmative defense." United States v. Vasco, 564 F.3d 12, 18 (1st Cir. 2009). To present this affirmative defense, a defendant must first carry the burden of production, measured by the sufficiency-of-the-evidence standard. United Sates v. Díaz-Maldonado, 727 F.3d 130, 137 (1st Cir. 2013); United States v. Rodriguez, 858 F.2d 809, 812-14 (1st Cir. 1988). Carrying that burden of production requires proof, first, of "government overreaching," such as "'intimidation, threats, dogged insistence,' or 'excessive pressure' directed at the target of an investigation by a government agent." Díaz-Maldonado, 727 F.3d at 137 (quoting Vasco, 564 F.3d at 18). The record in this case contains no evidence of any such overreaching. At most, it paints a picture of a government invitation to accept a government-created opportunity to commit a crime. But the law "expect[s] innocent persons to decline such opportunities in the absence of some additional importuning by the government." Id.

         So we ask whether the hoped-for, non-privileged testimony from Bennett might have filled in this hole in Cascella's entrapment defense. Cascella tells us that Bennett would have admitted to working with the police, but that is neither contested nor sufficient. Presumably most confidential informants work with and seek to curry favor from the police. Such a relationship may make the informant's conduct attributable to the police, see id. at 138-39, but it says too little about the nature of the informant's contact with the defendant to support an entrapment defense. Cascella claims that Bennett would have also admitted to suggesting that Cascella get a gun, or even encouraging him to do so. But, as we have explained, offering "an 'opportunity' to commit a crime" falls far short of the type of government overreaching that constitutes entrapment. United States v. Gendron, 18 F.3d 955, 961 (1st Cir. 1994) (quoting Sorrells v. United States, 287 U.S. 435, 441 (1932)).

         Nor need we entertain the possibility that Bennett might have said something in his testimony that exceeded the scope of Cascella's proffer. The hypothesis that frames our inquiry posits that Bennett brought undue pressure to bear on Cascella. Were that so, Cascella would obviously be aware of what testimony Bennett might have to help build such a defense; hence, we can expect Cascella's proffer to exhaust the plausible scope of any favorable testimony.

         Cascella's contention that testimony from Bennett might have supported a feasible entrapment defense fares even worse when placed in context. The day after the first methamphetamine purchase, Cascella had the following conversation with Perkins, as recorded by the police:

PERKINS: . . . are you with Joe [Bennett] today? He called me.
CASCELLA: Yeah.
PERKINS: Oh, he said you might be interested in trying to get something?
CASCELLA: Ah, no. I just wanted to know what the prices ra-, range.
PERKINS: Yup. Um, I don't - I mean, I know somebody where I can ...

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