United States v. Phillipos

• Decision Date: 24 February 2017
• Docket Number: No. 15-1716,15-1716
• Citation: 849 F.3d 464
• Parties: UNITED STATES of America, Appellee, v. Robel Kidane PHILLIPOS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

849 F.3d 464

UNITED STATES of America, Appellee,
v.
Robel Kidane PHILLIPOS, Defendant, Appellant.

No. 15-1716

United States Court of Appeals, First Circuit.

February 24, 2017

Derege B. Demissie , with whom Demissie & Church , Cambridge, MA, was on brief, for appellant.

Randall E. Kromm , Assistant United States Attorney, with whom Carmen M. Ortiz , United States Attorney, was on brief, for appellee.

Before Barron, Selya, and Stahl, Circuit Judges.

BARRON, Circuit Judge.

On October 28, 2014, Robel Phillipos was convicted under 18 U.S.C. § 1001(a)(2) on two counts of making false statements to federal authorities in the weeks following the Boston Marathon bombing. The bombing occurred on April 15, 2013. The statements related to Phillipos's possible participation, three days later, in the removal and disposal of a backpack thought to contain evidence related to the attack from the college dormitory room of Dzhokhar Tsarnaev, one of the bombing suspects and a friend of the defendant's at college. Phillipos was sentenced to three years' imprisonment and three years' supervised release. He now challenges his convictions on a number of grounds that we will address, along with the facts relevant to each, in turn. Because we find that none of these challenges has merit, we affirm.

I.

We start with Phillipos's challenges to the admission into evidence of a signed confession, in which Phillipos admitted to making the false statements that are at issue during two informal interviews with federal agents in the two weeks following the bombing. Phillipos signed that confession at the conclusion of an interview with an agent of the Federal Bureau of Investigation ("FBI") on April 26, 2013. Phillipos contends that the District Court erred in both (1) refusing to conduct a preliminary

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hearing on the admissibility of the confession unless Phillipos would agree to submit to cross-examination at that hearing on the contents of an affidavit that he submitted regarding the circumstances of the confession, and (2) failing to make a determination prior to the introduction of the confession into evidence as to whether Phillipos made the confession voluntarily. Neither challenge warrants reversal of the convictions.

A.

We begin with the first of Phillipos's challenges to the admissibility of the confession, which concerns the denial of his request for an evidentiary hearing on the voluntariness of his confession because he refused to submit to cross-examination. Phillipos sought the hearing in connection with his motion to suppress the confession pursuant to the Fifth Amendment's Due Process Clause.

Phillipos acknowledged that he had been informed of his rights, as required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to making the confession. But he contended that the circumstances under which he made it were coercive. In support of this motion, Phillipos relied solely on his own affidavit recounting his version of those circumstances.

Specifically, Phillipos's affidavit alleged that the interviewing FBI agent, Michael Delapena, "interrogated [Phillipos] for several hours in a small room." Phillipos also alleged that, during that time, Delapena administered a polygraph test, and told Phillipos that Phillipos could only answer questions with "yes or no." As a result, Phillipos alleged, he answered "no" to certain questions because he could not give the truthful answer, which would have been that he did not remember. Phillipos also alleged that Delapena did not offer Phillipos food; that Delapena "got close to [Phillipos's] face" and cursed at him; and that Delapena locked the door and told Phillipos, "[T]ell me everything that happened. There are wolves outside the door, you don't want me to unlock the door." In addition, Phillipos alleged that, at the end of the interrogation, Delapena presented him with a typed confession to sign, which Phillipos signed because "[he] felt that [he] had no choice but to sign it if [he] were to leave without being arrested."

Phillipos argued that the affidavit he submitted sufficed to show that there were facts in dispute regarding the confession's voluntary nature, because the account in the affidavit conflicted in key respects with the account the government set forth in its opposition to his motion to suppress the confession that it had filed. In its filing, the government did not dispute that Delapena questioned Phillipos for several hours in a small room.

The government did, however, dispute other aspects of Phillipos's account. Specifically, the government stated that, prior to administering the polygraph, Delapena explained to Phillipos that the polygraph questions had to be answered with a "yes or no," and that if Phillipos did not remember something, Delapena would rephrase the question so that Phillipos could truthfully answer with a "yes" or "no." The government's account also conflicted with Phillipos's in the following respects: Delapena did offer Phillipos food; Delapena "at no time ... raise[d] his voice, curse[d], or otherwise treat[ed] the defendant discourteously"; Delapena locked the door to the interview room only after Phillipos expressed concern that agents outside were angry with him, and, in doing so, Delapena told Phillipos, "Don't worry about them. They're outside; I'm here with you. I don't judge you." Finally, the government stated in its filing that Phillipos sat with Delapena

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as Delapena typed up the confession, that Delapena "conferred constantly" with Phillipos to ensure that Delapena was accurately setting forth Phillipos's account, and that, at several points, Phillipos asked Delapena to make specific changes to the account, which Delapena did.

A defendant is entitled to an evidentiary hearing as to the voluntariness of his confession only if the defendant "makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record." United States v. Staula , 80 F.3d 596, 603 (1st Cir. 1996). Applying that requirement to Phillipos's request for the hearing, the District Court acknowledged that the allegations in Phillipos's affidavit, if credited, would suffice to establish a factual dispute that would warrant a hearing. But the District Court went on to explain that the affidavit could suffice to establish that factual dispute only if Phillipos agreed to be cross-examined about the affidavit's contents at the hearing. Otherwise, the District Court ruled, the affidavit "cannot be tested" and would be "illusory." And, as a result, there would be no basis for finding that Phillipos had established the requisite factual dispute.

We review a preserved challenge to a denial of a request for a preliminary hearing for abuse of discretion. United States v. Jiménez , 419 F.3d 34, 42 (1st Cir. 2005). "Abuse of discretion occurs ‘when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales.’ " Id. at 43 (quoting United States v. Gilbert , 229 F.3d 15, 21 (1st Cir. 2000) ). "Within this framework, an error of law is always tantamount to an abuse of discretion." Torres–Rivera v. O'Neill–Cancel , 524 F.3d 331, 336 (1st Cir. 2008).

Phillipos contends that the District Court abused its discretion by making his willingness to submit to cross-examination a condition of holding the hearing. Phillipos contends that the condition effectively—and impermissibly—"[f]orc[ed] him to choose between" asserting his constitutional right against self-incrimination and asserting his right to an evidentiary hearing regarding the voluntariness of his confession. But, we do not agree.

Phillipos points to nothing in the record besides his affidavit that could have provided a basis for finding that he had met his burden of demonstrating a factual dispute that would warrant an evidentiary hearing at the time that the District Court imposed the cross-examination condition. In fact, when the District Court asked one of Phillipos's attorneys, prior to denying the motion for the hearing, to "[p]oint [the court] to" evidence in the record besides Phillipos's own affidavit that would support Phillipos's contention that his confession was not voluntary, the attorney failed to do so.¹

849 F.3d 469

As a result, the District Court simply determined that Phillipos failed to establish a sufficient threshold basis for finding that there was a factual dispute over the voluntariness of his confession because he had proffered only an untested—and thus illusory—affidavit. In doing so, the District Court followed a course that we approved, albeit in a different context, in United States v. Baskin , 424 F.3d 1 (1st Cir. 2005), which is a case that Phillipos fails to address.

There, a defendant relied solely on factual allegations set forth in his own affidavit in moving on Fourth Amendment grounds to suppress the fruits of a search. Id. at 3. The defendant refused, however, to submit to cross-examination that would allow...