United States Court of Appeals For the First Circuit

No. 18-1353

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]

Before

Torruella, Lipez, and Kayatta, Circuit Judges.

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.

November 12, 2019 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

- 2 - 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

- 3 - 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

(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

(a)(1), (b)(1)(B); one count of

possession with intent to distribute five grams or more of

methamphetamine in violation of

(a)(1), (b)(1)(B);

one count of possession of a firearm in furtherance of drug

trafficking in violation of

(c)(1)(A); and one count

of being a felon1 in possession of a firearm in violation of

(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

1 Cascella had twice previously been convicted of robbery, serving approximately eight years total.

- 4 - 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,

, 17 n.4 (1st Cir. 1984) (quoting In re

Grand Jury Witness (Salas),

(9th Cir. 1982));

see United States v. Santiago,

(1st Cir. 2009);

United States v. Castro,

(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,

, 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,

.

- 5 - 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,

(1986); see also United

States v. Kaplan,

(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,

(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,

(1st Cir. 2013);

United States v. Rodriguez,

, 812–14 (1st Cir. 1988).

Carrying that burden of production requires proof, first, of

"government overreaching," such as "'intimidation, threats, dogged

- 6 - insistence,' or 'excessive pressure' directed at the target of an

investigation by a government agent." Díaz-Maldonado,

(quoting Vasco,

). 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."

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

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,

(1st Cir. 1994) (quoting Sorrells v.

United States,

(1932)).

- 7 - 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 get them. CASCELLA: Yeah. PERKINS: Um, do you know what kind you're looking for? CASCELLA: Ah, just for self-protection. PERKINS: No, I know. Like ah . . . CASCELLA: [voice inaudible] PERKINS: . . . like ah . . . CASCELLA: [voice inaudible] PERKINS: . . . a semi-automatic or a revolver? CASCELLA: Whatever's easiest. PERKINS: Okay.

- 8 - CASCELLA: Just not auto. PERKINS: What's that? I'm sorry. CASCELLA: Probably semi-auto, right? PERKINS: Yeah, yeah. Yup. Um, all right. What ah, m-, my boy is totally cool. Ah, he's always asking me if you ever want, want one. And basically, I, I never got one 'cause I'd probably shoot myself foot, in the foot. But um . . . CASCELLA: I just want it for my own personal protection. PERKINS: Yeah. No, I hear you. Um, what - if he's into the shit that I'm into, you know, the, the meth, would you be willing to . . . CASCELLA: Uh-huh. PERKINS: . . . trade? Ah, ah, I haven't talked to him or anything. I just wanted to talk to you first, you know, ah. . . . PERKINS: . . . he, he's the shit. Um, what was I gonna say? Yeah, I mean, he, he likes that shit. So I didn't know if you could - you know, wanted to trade some of that for that or if you . . . CASCELLA: I ah, you have to give me a number, so I, I get an idea. PERKINS: Okay. Yeah, I mean, like I said, I ha-, I haven't even talked to him or anything. Um . . . CASCELLA: Yeah, just ah, give him a call. Give him a call. . . . PERKINS: . . . what are you looking to spend if ah, if it was like money? CASCELLA: I'm probably looking to spend ah, ah, less than two. PERKINS: Okay. All right. All right. CASCELLA: I just want it just for myself, even if it's a two shooter, two, two shooter, you know? PERKINS: Right, okay. All right. CASCELLA: Yeah, I want the man know that's the cheapest you can get me, dude. PERKINS: No, I hear you. I hear you. I don't know if - again, I don't - I'm not a gun nut, so I don't know how much they cost.

- 9 - CASCELLA: Me neither. Ah, I ain't, either. That's why I said as long as it - if, if, if it fires, I won't miss.

Nothing in this conversation -- even as supplemented by

the hoped-for testimony by Bennett -- suggests that anyone badgered

Cascella into acquiring a gun against his own disposition. To the

contrary, Perkins offered Cascella reason not to get a gun,

explaining why Perkins did not have one. See Vasco,

(observing that government conduct is not overreaching where an

officer gives the defendant an "opportunity to back away from the

crime"). In addition to this call, the jury heard Cascella's

recorded, post-arrest confession in which he stated that he had

been selling drugs to four different customers and that he wanted

a gun for protection because he had previously been robbed. And

Perkins testified that Cascella had previously said that "normally

he charges $450" for an "eight ball"2 of methamphetamine.

Even viewing Cascella's proposed evidence, as we must,

"in the light most favorable to the accused so as to determine

whether the record supports an entrapment theory," United States

v. Shinderman,

(1st Cir. 2008), we agree that

Cascella's defense was -- in the government's words -- "hopeless."

On this record, the district court need not have put the entrapment

defense to the jury. See Díaz-Maldonado,

. A

2 According to Perkins and Chau, "eight ball" is a slang term meaning one-eighth of an ounce of drugs.

- 10 - fortiori, the failure to allow Cascella a chance to elicit from

Bennett the proffered, possibly non-privileged testimony was

harmless beyond a reasonable doubt.

Four somewhat related loose ends remain. First,

Cascella argues on appeal that the district court's observation

that Cascella could testify himself about his conversations with

Bennett "unreasonably burden[ed] Cascella's right not to testify."

But Cascella had already clearly signaled to the district court

that he planned to testify, claiming in his opening statements at

trial that he would testify and only deciding not to do so after

the court's ruling that Bennett would not take the stand. In any

event, any possible error in this regard would suffer from the

same harmless-error problem. Second, Cascella argues for the first

time in his reply brief that the government could have granted

Bennett formal immunity under

. See Note, The

Sixth Amendment Right to Have Use Immunity Granted to Defense

Witnesses,

(1978); see also United States v.

Quinn,

, 251 n.1 (3d Cir. 2013) (en banc); Curtis v.

Duval,

(1st Cir. 1997). That issue was not properly

preserved, so we do not address it. See United States v. Tosi,

(1st Cir. 2018) ("[A]rguments available at the

outset but raised for the first time in a reply brief need not be

considered."). Third, for that same reason, we do not address the

argument, also raised for the first time in the reply brief, that

- 11 - Bennett may have waived any claim of privilege by speaking with

the government attorney and federal agents the day before appearing

at trial. Fourth, we are not deciding whether Cascella could have

requested a jury instruction that a confidential informant was

unavailable to testify, or had pleaded the Fifth. Cascella never

requested a jury instruction about Bennett's refusal to testify,

and he does not raise the issue on appeal. So, we need not decide

whether such an instruction would be appropriate or the precise

contours of such an instruction. See United States v. Zannino,

(1st Cir. 1990) (requiring an argument on appeal to

be sufficiently developed in the appellant's opening brief).

B. Brady Challenge

Cascella's next argument arises from what at best can be

described as the government's sloppy handling of information it

obtained prior to trial concerning his phone usage. The government

subpoenaed T-Mobile for records of Cascella's cellphone usage

between March 8 and May 4, the day of his arrest. Rather than

turning over to Cascella the data as received from T-Mobile, the

government put it into a spreadsheet, which it then produced to

Cascella, describing it as "toll records received pursuant

to . . . subpoena listing call times by EST, rather than GMT as

originally provided by the carrier." The government also extracted

call data from Cascella's phone (including the SIM card). It then

- 12 - sent a DVD to Cascella, describing it as "a DVD containing the

report of data extraction from your cellular telephone."

After trial, Cascella's counsel obtained the actual

customer cellphone records (rather than just the data) directly

from T-Mobile. Those more extensive T-Mobile records showed eleven

additional contacts between 1:45 p.m. and 8:45 p.m. on March 29.

Those contacts consist of three texts from Bennett, a 75-second

call from Bennett, another text from Bennett, a 50-second call

from Perkins, a text from Perkins, a 25-second call from Perkins,

a 19-second call from Cascella to Bennett, a 5-second call from

Cascella to Bennett, followed by a 71-second call from Bennett to

Cascella. None of the records revealed the substance of any

communications, other than that the phone calls were extremely

brief. With the additional records in hand, Cascella moved for a

new trial. He claimed that the government had manipulated the

data provided to him to hide those contacts. And he claimed as

well that the government had destroyed and not produced additional

text data that he says should have been extractable from his

cellphone.

The hearing that ensued produced a confusing record

concerning what happened. Understandably suspicious given the

apparent disparity in the records, Cascella asserted that the

government had manipulated and hidden data confirming his

additional contacts with Bennett and Perkins prior to March 30.

- 13 - Government counsel added to the cause for suspicion by telling the

court, imprecisely and incorrectly, "[w]hat we got, we turned

over." Less imprecisely, the government flatly denied destroying

or concealing anything, attributing the difference in the data to

differences in what it received from T-Mobile and what T-Mobile

provided in a different form to its customer.

The district court resolved all of this by turning to

the issue of prejudice. A Brady violation calls for a new trial

only if, among other things, "the defendant was prejudiced by the

suppression [of evidence] in that there is a reasonable probability

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different." United States v.

Del-Valle,

(1st Cir. 2009); see Brady v. Maryland,

(1963). "We review the denial of a new-trial

motion on the basis of an alleged Brady violation for manifest

abuse of discretion." United States v. Martínez-Mercado,

, 104–05 (1st Cir. 2019).

The record in this case includes recordings and videos

of Cascella selling drugs to Perkins in a manner that makes clear

Cascella had done it before. It also contains the transcript of

his conversation with Perkins concerning the gun, which occurred

after the missing calls. Nothing that Cascella said during that

conversation reads as if he had previously been unduly pressured

by anyone to get a gun against his own disposition. Furthermore,

- 14 - Cascella's contention that the evidence of the additional calls

would have helped him reveals only that he misunderstands the

burden of generating an entrapment defense. Although a party to

all the calls, he makes no proffer that Bennett or Perkins said

anything on those calls that would constitute the type of

overreaching conduct required to prove entrapment.

Cascella also wished to use the phone records to impeach

Perkins's testimony that he had only called Cascella once prior to

March 30. The customer records provided directly by the carrier

show an additional 25-second call. But there is no claim by

Cascella that Perkins said anything in that brief call that would

give rise to an entrapment defense. As we have said before, "there

is no Brady violation compelling a new trial when the belatedly

supplied evidence is merely cumulative or impeaching on a

collateral issue."

.

C. Closing Arguments

Finally, we consider Cascella's challenge to the

government's statements in closing arguments. During closing

arguments, the government frequently referred to Cascella as a

"drug dealer." For example,

THE GOVERNMENT: Look, the Defendant was a drug dealer . . . . . . . THE GOVERNMENT: [T]he Defendant revealed many aspects of his being a drug dealer. . . . THE GOVERNMENT: He's a quality dealer.

- 15 - . . . THE GOVERNMENT: The undercover officers in this case presented a drug dealer an opportunity to do what the drug dealer does: Deal drugs. And he dealt drugs. . . . [H]e's a drug dealer. He dealt drugs because he's a drug dealer and he wanted to deal drugs.

The government also said, in reference to a video played

for the jury of Cascella slipping methamphetamine into the center

console of a car rather than handing it directly to Perkins, that

"[t]his is not something a novice does. This is learned behavior,

concealment of what you're doing. This is not his first rodeo.

He's been doing this a while."

The government also made the following comment in

reference to a recorded phone call played for the jury between

Perkins and Cascella in which Perkins had referred to the March 29

bathroom exchange:

THE GOVERNMENT: This transaction at the Speedway [gas station] on April [sic] 29th involved Perkins having to go into a bathroom, collect the drugs from on top of a fire alarm or a fire box. Detective Perkins repeatedly referenced that. As you might understand, he was interested in obtaining the drugs and moving on. He didn't want to be out of his car. He didn't want to go into bathrooms. He didn't want to get into that, so he kept referencing that in subsequent calls and in subsequent meetings. Not once do you hear the Defendant, What are you talking about, what bathroom? Defendant is telling you that the March 29th transaction occurred. Defendant is telling you that that phone call occurred.

- 16 - Cascella failed to make contemporaneous objections to

these statements, so our review is for plain error. See United

States v. Salley,

(1st Cir. 2011). "Plain error

requires a showing (1) that an error occurred (2) which was clear

or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."

(quoting United States v. Landry,

(1st Cir.

2011)).

Cascella first challenges the government's repeated

reference to him as a "drug dealer," claiming that such statements

were "extremely prejudicial." It is elementary that prosecutors

may not present their own personal opinions to the jury. See

Greenberg v. United States,

, 474–75 (1st Cir. 1960);

Restatement (Third) of the Law Governing Lawyers § 107 (Am. Law

Inst. 2000). Calling Cascella a "drug dealer" could arguably be

viewed by some people as a form of vouching; i.e., offering the

prosecutor's own opinion of the defendant's guilt. Cautious

government attorneys might avoid this potential problem by saying

instead, "the evidence shows that the defendant is a drug dealer."

But that could become quite repetitious, and trial courts, as here,

generally remind jurors that comments and statements made by the

government's attorneys are not evidence. In any event, we have

not found a failure to employ such a finely parsed phrasing

- 17 - prejudicial, even in opening statements, at least where the record

contained ample evidence to support the contention that the

defendant was a drug dealer. See United States v. Capelton,

, 237–38 (1st Cir. 2003) (finding no prejudice from the

government's reference to defendants as "drug dealers" in opening

statements).

In this case, the government directly supported its

assertion by pointing to the record evidence and did not claim any

knowledge based on evidence outside the record. In context, the

belatedly challenged statements plainly read more like "the

evidence shows he is a drug dealer" than "I think he is a drug

dealer." We see no plain error here.

Cascella makes a slightly different argument concerning

the statement that "[t]his is not his first rodeo." According to

Cascella, this statement "impermissibly raises facts not in

evidence and suggests the government has special access to

unadmitted evidence of prior misconduct of unspecified duration

and frequency." We are not persuaded. It is true that government

attorneys may not "impl[y] that [a] witness's testimony is

corroborated by evidence known to the government but not known to

the jury." United States v. Valdivia,

(1st Cir.

2012) (second alteration in original) (quoting United States v.

Francis,

(6th Cir. 1999)). But here the comment

was made in reference to a video of Cascella performing an evasive

- 18 - maneuver that a juror could assume was a behavior learned from

drug dealing. We see no reason why the government could not point

this out, nor was there anything unfair about the colloquial

language used to make the point.

Lastly, Cascella argues that one of the government's

statements impermissibly brought to the jury's attention

Cascella's refusal to testify on his own behalf. Government

attorneys may not comment to the jury on a defendant's decision

not to testify. See Griffin v. California,

, 613

(1965); United States v. Wihbey,

(1st Cir. 1996).

In support of his argument, Cascella points to the prosecutor's

statement that "[n]ot once do you hear the Defendant, What are you

talking about, what bathroom?" Again, context matters. This

comment was part of a description of a phone call between Perkins

and Cascella about the March 29 gas-station-bathroom transaction.

The prosecutor was not saying "[n]ot once d[id] you hear the

Defendant" testify that he did not put drugs in the bathroom. He

was clearly saying "[n]ot once do you hear the Defendant" in this

phone call deny knowledge of the previous transaction. The former

would be improper in a case where the defendant did not take the

stand, but the latter is permissible.

Finding no error as to any of Cascella's challenges to

the closing arguments, we need not consider the remaining elements

of plain-error review.

- 19 - III.

For the foregoing reasons, we affirm Cascella's

conviction.

- 20 -