United States v. Silva

• Citation: 742 F.3d 1
• Decision Date: 05 February 2014
• Docket Number: No. 13–1084.,13–1084.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Parties: UNITED STATES of America, Appellee, v. Anthony SILVA, Defendant, Appellant.

742 F.3d 1

UNITED STATES of America, Appellee,

v.Anthony SILVA, Defendant, Appellant.

No. 13–1084.

United States Court of Appeals,First Circuit.

Feb. 5, 2014.

Edward J. O'Brien, by appointment of the court, with whom O'Donnell, Trossello & O'Brien, LLP, was on brief for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief for appellee.

Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

Anthony Silva was convicted in district court of possessing with intent to defraud counterfeit United States currency in violation of 18 U.S.C. § 472. On appeal, Silva claims that the district court erred in admitting evidence seized by police during and after his arrest, denying his motion for a judgment of acquittal based on the insufficiency of the evidence, and issuing a prejudicial jury instruction on the statutory element of fraudulent intent. Because we find no error in the district court's evidentiary rulings or jury instructions, we affirm.

I. Facts and Background

A. Arrest and Search

On July 19, 2010, Daniel Pelletier came to the Derry Police Department to report a complaint against his acquaintance AnthonySilva. Pelletier told Officer O'Donaghue that Silva had just given him $150 in counterfeit currency in exchange for $100 worth of repairs that Pelletier had performed on his car, which Pelletier produced for the officer in a plastic bag. Pelletier related that Silva was producing counterfeit bills as well as counterfeit drivers' licenses, and that Silva had $300 to $400 more in counterfeit currency in a white Sovereign Bank envelope. He also reported that Silva was living out of his silver Cadillac sedan, in which Silva kept all of his belongings and was currently parked in a lot at 25 Linlew Drive. Asked why he had come forward with this information, Pelletier informed O'Donaghue that he had been “burned” by Silva in past business transactions and was “fed up” with his behavior.

Although O'Donaghue was unaware of it at the time, this was not the first time that Pelletier had complained to the Derry Police Department regarding alleged incidents. Over the previous years, Pelletier had contacted the police on numerous occasions, claiming to have been cheated out of the ownership of several gas stations. In 2010, he claimed to have been beaten by six unidentified men and reported a break-in into his home. None of the ensuing investigations yielded any evidence corroborating Pelletier's claims. Pelletier would also later claim to have won ten million dollars in the lottery in 2005, although in fact he currently lives with his mother and has shown no evidence of receiving such winnings.

In response to Pelletier's report, Sergeant Muncey and Officer Phillips of the Derry Police were dispatched to 25 Linlew Drive. As reported by Pelletier, the officers observed a silver Cadillac sedan full of personal belongings, occupied by a shirtless man sitting in the driver's seat. Muncey and Phillips approached the car and asked the individual for his driver's license. When the individual refused to produce his license, Muncey threatened to arrest him for failing to comply with an order from a policeman. The individual subsequently produced a New Hampshire driver's license identifying him as Anthony Silva. Based on that license, Phillips radioed in Silva's information and was informed by the dispatcher that Silva had an outstanding bench warrant for an unpaid motor vehicle fine.

Acting on Silva's outstanding warrant, the officers ordered him to exit the car and placed him under arrest. When they conducted a search of his person incident to arrest, the officers found a fake New York driver's license with Silva's photograph, as well as $20 and $10 bills that Phillips believed to be counterfeit based on their texture, coloring, and missing watermarks. After Silva was taken to the police station, he waived his Miranda rights and told the officers that he must have obtained the counterfeit bills during a transaction at a nearby Walmart or gas station. He refused to give the police consent to search his car.

In the absence of consent, the police arranged to have Silva's car towed to the police station. The officers did not immediately search the car, instead assigning Detective Muise to apply for a search warrant. That afternoon, Muise spoke with Pelletier “in order to gain probable cause” for the search warrant. Pelletier informed the detective that Silva had called him following his arrest and lamented that he was “screwed” because he had $3,000 worth of counterfeit bills in his trunk.

Because Silva's arrest involved counterfeiting of United States currency, the Derry prosecutor passed the case to the Secret Service. Muise shared the information she had collected on Silva with Special Agent Brian Coffee, including Pelletier's initial report and her follow-up conversation. It is unclear whether she knew or shared information about Pelletier's history of false reports. Coffee submitted an application for a search warrant that included Pelletier's accusations against Silva, but no information regarding Pelletier's mental health or his personal antipathy towards Silva. Coffee wrote that Pelletier's information was “trustworthy and reliable.” After a warrant was executed, Secret Service agents discovered $2,880 in counterfeit money, a copier/scanner, and a paper cutter in the trunk, as well as $200 in counterfeit money in the glove compartment.

B. Trial

The government charged Silva with possession with intent to defraud of counterfeit United States currency in violation of 18 U.S.C. § 472. Before trial, Silva moved to suppress any evidence discovered during his arrest and the subsequent search of his car. He further moved to invalidate the search warrant for his car on the basis that Coffee's application concealed material facts bearing on Pelletier's credibility. The district court denied the motion to suppress and, after holding a Franks hearing on the matter of the warrant, denied Silva's motion to invalidate.

At trial, the prosecution presented substantially the same information described above, as well as evidence that the serial numbers on Silva's counterfeit bills matched the numbers on counterfeit bills recently passed in nearby towns. After the presentation of evidence, Silva moved for a judgment of acquittal based on insufficient evidence to establish the statutory element of intent to defraud. The district court denied the motion. During the charging conference, it proposed the following jury instruction with respect to that element:

Because it is impossible to know a person's intentions or subjective beliefs, the government need not directly prove the defendant's intent to defraud another person. Rather, it may prove his intent by circumstantial evidence. That is to say, you may infer the defendant's intent from the surrounding facts and circumstances. So, for example, in determining whether the defendant had the requisite intent to defraud, you may consider things such as whether he possessed a substantial number and/or variety of counterfeit Federal Reserve Notes. You may also consider whether those counterfeit Federal Reserve Notes were of such a quality that they would be likely to be accepted in a transaction since the more closely counterfeit Notes resemble genuine currency, the more likely you might find that the defendant intended to use those Notes fraudulently to receive goods or services.

Silva challenged the proposed instruction on the grounds that the court's references to the amount of currency as potential evidence of intent endorsed the government's theory of proof. The court overruled the objection.

The jury returned a conviction on the charge of possession with intent to defraud. Silva now appeals to this court.

II. Discussion

With the exception of Silva's challenge to the jury instructions, which are reviewed for abuse of discretion, United States v. Sasso, 695 F.3d 25, 29 (1st Cir.2012), we review Silva's challenges to the admissibility of seized evidence and the judgment of acquittal de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding that reasonable suspicion and probable cause determinations are reviewed de novo ); United States v. Grace, 367 F.3d 29, 34 (1st Cir.2004) (reviewing sufficiency of the evidence determinations de novo ). We review the district court's factual findings only for clear error. United States v. Wright, 582 F.3d 199, 205 (1st Cir.2009).

A. The Investigative Stop

Silva alleges that the Derry police officers violated his Fourth Amendment right when they seized him at 25 Linlew Road based on Pelletier's allegedly unreliable complaint. The parties do not dispute that the police officers “seized” Silva when they approached his car and demanded his driver's license. The only question is whether the officers had a reasonable suspicion of criminal activity sufficient to justify their actions.

Under the Supreme Court's precedent in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may perform “a brief investigatory stop of an individual if the officer has a reasonable suspicion that criminal activity may be afoot.” United States v. Am, 564 F.3d 25, 29 (1st Cir.2009); see also United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (“[T]he Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot.”) (internal quotation marks and citation omitted). A permissible investigatory stop must satisfy two requirements:

First, the police officer “must have a reasonable, articulable suspicion of an individual's involvement in some criminal activity.” United States v. Ruidíaz, 529 F.3d 25, 28 (1st Cir.2008). A reasonable suspicion of criminal activity requires some “particularized and objective basis” for...