FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND Hon. William E. Smith, Chief U.S. District Judge
de Crombrugghe McGillion, with whom Ines McGillion Law
Offices, PLLC was on brief, for appellant.
C. Lockhart, Assistant United States Attorney, with whom
Aaron L. Weisman, United States Attorney, was on brief, for
Torruella, Lipez, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
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
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.
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.
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.
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
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 in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2).
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.
A. Privilege Against Self-Incrimination
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.
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).
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
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.
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)).
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.
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.
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 ...