United States Court of Appeals For the First Circuit

No. 05-1990

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS DIAZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Leslie W. O'Brien for appellant. Andrew E. Lelling, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

July 19, 2007 HOWARD, Circuit Judge. Carlos Diaz appeals his

conviction on charges of possessing and conspiring to distribute

the controlled drug ecstasy. Diaz claims that (1) the district

court should have suppressed evidence gleaned from the warrantless

seizure of his cell phone, and (2) unexpected testimony by a

government witness that Diaz had illegally entered the United

States necessitated a mistrial. We affirm.

I.

Just after midnight on October 16, 2001, three agents of

the Drug Enforcement Agency, accompanied by uniformed officers from

the local police department, arrived at an apartment in Lynn,

Massachusetts. The officers were led there by Ellis Martinez, who

had been arrested earlier that night for selling five hundred

ecstasy tablets to an undercover DEA agent, Todd Prough. Martinez

said he had acquired the tablets at the apartment that day from a

man known to him as "Memello." Martinez further recounted that he

had not paid Memello for the ecstasy, but had received it "on

consignment," meaning that he was expected to sell it and repay

Memello out of the proceeds that same night. Martinez also

provided Prough with a brief physical description of both Memello

and his vehicle, a gold Honda.

During Martinez's interrogation, his cell phone

continually rang, displaying a number he had previously identified

as Memello's. Eventually, Prough and the other officers conducting

-2- the interrogation instructed Martinez to answer one of Memello's

calls, which Prough monitored and recorded. In this call, Martinez

claimed to have the money to repay Memello, and promised to deliver

it to him shortly. Prough, joined by other law enforcement

personnel, then proceeded to Memello's apartment to arrest him.

Prough later explained that he did not seek an arrest warrant due

to the difficulty of contacting a magistrate at the late hour and

out of a concern that the attendant delay would arouse Memello's

suspicions as to Martinez's whereabouts, causing Memello to destroy

evidence or to flee.

The officers approached the apartment, located on the

second-floor of a multifamily house, by way of a back staircase.

A gold Honda was parked outside. The officers' badges were

visible, but their weapons were not drawn. One of the local

officers knocked on the door. When a woman opened it, the officer

identified his group as the police and asked to come in and talk to

her. The woman, later identified as Diaz's wife, Amanda Burgos,

responded by moving away from the door and gesturing to the

officers to enter.

Once inside the apartment, Prough observed a man sitting

in the kitchen and asked him for his name. The man identified

himself as Carlos Diaz. Prough recognized him as Memello from his

appearance, which fit the description provided by Martinez, and his

-3- voice, which Prough had heard while listening to their cell phone

conversation. Diaz was arrested and removed from the apartment.

Prough then asked Burgos whether the apartment contained

any weapons or drugs; she said no. He asked her for permission to

search the apartment; she said yes. While another officer was

leaving the apartment to obtain a form for Burgos to sign to

consent to the search, Prough noticed a cell phone on the coffee

table in front of her. Burgos indicated, in response to an inquiry

from Prough, that the phone belonged to her husband, Diaz. Prough

determined that the phone was the same one that had been used to

place the call to Martinez earlier that evening.1 Prough then

seized the phone. After Burgos signed the consent form, another

DEA agent, Michael O'Shaughnessy, examined the phone and determined

that it had been used to place a call to Martinez minutes before

the authorities arrived at the apartment that night.

Diaz was transported to the police station in Woburn,

Massachusetts, where he was advised of and waived his Miranda

rights. When Prough told Diaz that he had been arrested for

trafficking in ecstasy, Diaz remarked, "What a mess I got myself

into. You got me for being a fool." He proceeded to explain that

1 Prough could not recall whether he made this determination by using Diaz's phone to call his own phone (so that Diaz's number would appear through his caller identification feature), by using his phone to call Diaz's number (so that the phone would ring), or by activating a function on the phone itself that caused it to display its number.

-4- he had entered the United States illegally some fifteen years

prior. Under further interrogation from Prough, Diaz admitted that

he served as a middleman between buyers and sellers of ecstasy,

funneling approximately 1,000 tablets each week to Martinez and his

principal, Tomas Cubilette. Diaz further confessed to providing

Martinez with the five hundred ecstasy tablets he had sold to

Prough that day. Diaz's confession was not video- or tape-

recorded, however, and he was never asked to put it in writing.

Before trial, Diaz moved to suppress the evidence seized

from the apartment and his confession as the fruits of an illegal

warrantless entry and arrest. The district court denied the motion

in a written memorandum and order issued after an evidentiary

hearing. The court ruled that (1) Burgos voluntarily gave her

consent to the officers' entry into the apartment, (2) the officers

had probable cause to arrest Diaz on sight, and (3) the cell phone

was lawfully seized under the "plain view" exception, see Horton v.

California,

(1990).2

At trial, Prough served as the government's principal

witness against Diaz, relating the substance of his confession as

well as the aforementioned events of the night of October 15. The

government also submitted toll records showing multiple calls

2 The district court also made the alternative rulings that (1) exigent circumstances permitted the warrantless entry, and (2) the seizure of the cell phone was within the scope of the consent Burgos had given to search the apartment. For reasons that will appear, we need not pass upon those rulings.

-5- between Martinez's cell phone and Diaz's cell phone prior to Diaz's

arrest that night, and similar activity on a number of previous

occasions when Prough had purchased, or attempted to purchase,

ecstasy from Martinez. Diaz's cell phone was also introduced into

evidence, accompanied by testimony from O'Shaughnessy as to the

call from the phone to Martinez just before the authorities arrived

at Diaz's apartment.

In describing Diaz's confession, Prough testified that

Diaz had admitted to entering the United States illegally. Diaz

immediately made an objection, which the district court sustained.3

At the end of that day of trial, Diaz moved for a mistrial on the

basis of this testimony, which he characterized as irrelevant and

prejudicial. Though the government opposed the motion, it took

"full responsibility" for Prough's testimony: the prosecutor

acknowledged that he could not recall whether he had instructed

Prough not to mention Diaz's immigration status, despite assuring

defense counsel before trial that he would do so.4

3 Diaz did not move to strike the testimony because, as defense counsel later explained, he did not want to call the jury's attention to it. 4 Diaz does not argue that the prosecutor's handling of the situation amounted to intentional misconduct, e.g., that the prosecutor knowingly failed to tell Prough not to mention the subject in hopes that he would. Cf. United States v. Sepulveda,

(1st Cir. 1993) (considering claim that government violated due process by purposely calling incompetent witness).

-6- The district court denied the motion, concluding that the

testimony would not "materially affect" the outcome of the trial,

but offered to instruct the jury to disregard it. Diaz, however,

did not take the court up on its offer, believing that an

instruction would only highlight Prough's statement. The jury

convicted Diaz on both the possession and conspiracy charges.

II.

A.

Diaz appeals from the denial of his motion to suppress

his cell phone as the spoils of an unconstitutional warrantless

entry and seizure. He does not, however, separately question the

district court's conclusion that the officers had probable cause to

arrest him and that his confession was therefore legally obtained.

In passing on a district court's decision on a motion to suppress,

we scrutinize rulings of law de novo, but review findings of fact

for clear error only. E.g., United States v. McCarthy,

(1st Cir. 2007).

The Fourth Amendment "prohibits the police from making a

warrantless and nonconsensual entry into a suspect's home in order

to make a routine felony arrest." Payton v. New York,

(1980). Nevertheless, "[t]he Fourth Amendment recognizes

a valid warrantless entry . . . when police obtain the voluntary

consent of an occupant who shares, or is reasonably believed to

share, authority over the area in common with a co-occupant who

-7- later objects to the use of evidence so obtained." Georgia v.

Randolph,

(2006). When faced with such an

objection, the government has the burden to show by a preponderance

of the evidence that the consent was voluntarily given. United

States v. Marshall,

(1st Cir. 2003).

The district court found that Diaz's wife, Burgos, had

voluntarily consented to the arresting officers' entry into the

apartment. Diaz does not challenge this result per se. Instead,

he contends that the district court erroneously placed the burden

on him to prove that Burgos did not consent. He bases this charge

on a statement in the court's order on the motion to suppress:

The problem in this case is that only one version of what happened at the threshold of the door to the Burgos-Diaz apartment was presented to me--that of [Special Agent] Prough. Burgos did not testify. And while parts of the Prough testimony troubled me, I have no basis to conclude that Burgos' consent was not 'freely given' within the meaning of the law.

We do not read this statement as placing the burden of proving

voluntary consent on Diaz. Rather, the passage expresses the

court's conclusion that Prough's testimony, despite its faults,

sufficed to satisfy the government's burden in the absence of any

contradictory evidence. We read the statement, in other words, as

reflecting Diaz's failure to challenge the government's proof of

voluntary consent, not condemning his failure to prove otherwise in

the first instance.

-8- Indeed, elsewhere in its order, the district court

specifically noted that the warrantless entry "was presumptively

illegal unless the government can justify exceptions to the Payton

rule" and that the law "obligates the government to prove that

consent was, in fact, freely and voluntarily given." (internal

quotation marks omitted). We are generally skeptical of claims

that a district court professed to apply one rule, but went on to

apply another; "[a]fter all, an appellate tribunal ought not

lightly assume that a federal trial judge is indulging in the

adjudicatory equivalent of a shell game." Lenn v. Portland Sch.

Comm.,

(1st Cir. 1993) (collecting cases). We

see no reason to dispense with such skepticism here. We conclude

that the district court, in word and in deed, correctly placed the

burden of proving voluntary consent on the government.

Diaz also claims that, even if the district court

properly found that Burgos validly consented to the officers'

warrantless entry, she did not validly consent to their warrantless

search and seizure. Specifically, Diaz argues that Burgos lacked

the authority to consent to either the search of the apartment or

the seizure of the cell phone. We need not reach this issue,

however. In addition to finding that Burgos did consent to such a

search, the district court ruled that the cell phone was legally

seized under the "plain view" exception to the warrant requirement.

This conclusion appears sound, but, in any event, Diaz does not

-9- question it on appeal.5 We affirm the district court's denial of

the motion to suppress, insofar as it challenged the seizure of the

cell phone, on the basis of the "plain view" exception.

B.

Diaz also challenges the denial of his motion for a

mistrial based on Prough's testimony that Diaz had admitted

entering the United States illegally. Because "whether to declare

a mistrial speaks to the informed discretion of the district

court," we review this decision for abuse of that discretion only.

United States v. Keene,

(1st Cir. 2002). Indeed,

"this precept possesses particular force when, as now, a motion for

mistrial is based on a claim that some spontaneous development at

trial may have influenced the jury in an improper manner." United

States v. Pierro,

(1st Cir. 1994).

5 To the extent that he argues that the cellular telephone's assigned number was illegally obtained apart from the seizure of the telephone, Diaz did not raise this claim in a timely and full fashion before the district court; review is thus for plain error only. See, e.g., United States v. Burnette,

(1st Cir. 2004) (reviewing suppression argument not raised below for plain error only), vacated on other grounds,

(2005). As we have noted, it is unclear whether the method by which the information was gleaned constituted a search. In any event, as the government argues unchallenged, probable cause existed to search for the telephone number, and it inevitably would have been discovered, either in plain view or by search conducted pursuant to a warrant. There was no plain error in not suppressing the assigned telephone number. See, e.g., United States v. Procopio,

(1st Cir. 1996) (holding that evidence is admissible if shown by preponderance that it inevitably would have been discovered by legal means).

-10- We accept the notion, as does the government, that

evidence of a defendant's illegal immigration status carries with

it the potential for prejudice. See United States v. Amaya-

Manzanares,

(1st Cir. 2004). We agree with the

district court, however, that such potential went unrealized here.

First, the government's case against Diaz was sturdy,

with his full confession serving as its keystone. While Diaz

points out that the confession was not transcribed, whatever doubt

this casts on its value was substantially dispelled by a raft of

corroborating evidence, including the toll records of calls to

Martinez corresponding with the occasions on which he had sold

ecstasy to Prough. See, e.g., United States v. Fontanez,

, 89 (1st Cir. 2002). We have observed that such strong

independent evidence of guilt tends to lessen the effect of an

improper comment by a witness, making a mistrial unnecessary. See

United States v. DiSanto,

(1st Cir. 1996);

United States v. Rullan-Rivera,

(1st Cir. 1995);

United States v. Bello-Perez,

(1st Cir. 1992).

Second, after Prough stated that Diaz had admitted

entering the country illegally, that fact was never mentioned

again, either in the balance of Prough's lengthy testimony or in

the prosecutor's closing arguments. The isolated nature of the

offending remark further cuts against any need for a mistrial. See

United States v. Lee,

(1st Cir. 2003).

-11- "Declaring a mistrial is a last resort, only to be

implemented if the taint is ineradicable, that is, only if the

trial judge believes that the jury's exposure to the evidence is

likely to prove beyond realistic hope of repair." Sepulveda,

. Here, the district court reasonably believed

otherwise, based on the fleeting nature of Prough's remark about

Diaz's immigration status and the strength of the government's

independent evidence. Denying the motion for a mistrial, then, was

not an abuse of the district court's discretion.

III.

For the foregoing reasons, Diaz's conviction is affirmed.

-12-