United States v. Casey

Decision Date03 June 2016
Docket NumberNo. 13-1839,13-1839
PartiesUnited States, Appellee, v. Lashaun Casey, Appellant.
CourtU.S. Court of Appeals — First Circuit

825 F.3d 1

United States, Appellee
v.
Lashaun Casey, Appellant.

No. 13-1839

United States Court of Appeals, First Circuit.

June 3, 2016


Linda Backiel on brief for appellant.

Mariana E. Bauzá, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, Thomas Klumper, Assistant United States Attorney, Senior Appellate Counsel, and Susan Z. Jorgensen, Assistant United States Attorney, were on brief for appellee.

Before Thompson, Hawkins,* and Barron, Circuit Judges.

HAWKINS, Circuit Judge.

Lashaun Casey appeals his conviction by jury trial and life sentence for the death of an undercover police officer during a drug buy. His appeal raises a host of challenges to rulings issued throughout his pretrial and trial proceedings, and urges he be granted a retrial. For the reasons described in the opinion that follows, we affirm.

I. Background

A. Facts

The overarching series of events giving rise to this appeal are not in dispute. Contested issues pertinent to Casey's arguments on appeal, and the appropriate standard of review for each, are addressed in the Discussion sections below. While the record is brimming with numerous additional details, we keep our synopsis relevant to the questions we have been asked to consider.

In 2005, Puerto Rico Police Department (“PRPD”) Agent Jesús Lizardi–Espada (“Lizardi”) was assigned to investigate Casey undercover. He eventually arranged with Casey's assistance to purchase four pounds of marijuana on the island of Culebra in the morning hours of August 1, 2005, from the drug supplier Alexander Hernández. Lizardi and Casey were to drive to Fajardo, from where they would take a ferry to Culebra to meet Hernández. A law enforcement team led by Lizardi's supervisor, Agent José Agosto–Rivera (“Agent Agosto”), traveled to Culebra by plane to await Lizardi and Casey's arrival.

When Agent Agosto did not see Lizardi and Casey arrive on the ferry as planned, a search for Lizardi commenced. Later

825 F.3d 8

that day, Agent Agosto found Casey at his workplace, a Holiday Inn in Isla Verde, and spotted Lizardi's gray Ford truck in the hotel parking lot. Upon leaving the Holiday Inn in Lizardi's truck, Casey was arrested and taken to PRPD general headquarters, where he was read his rights, signed a Miranda waiver, and began being questioned. Casey, who remained in PRPD custody until midday the following day, was moved to a PRPD precinct in Canóvanas and later to one in Luquillo. At some point, Casey told officers he was no longer interested in talking with the police.

While Casey was in PRPD custody, Casey's grandparents Mr. and Mrs. Rivera, with whom he lived, permitted law enforcement officers to search his bedroom without a warrant. In it, the FBI discovered a loaded firearm inside a jacket pocket, Lizardi's cell phone, and a pair of blood-stained flip flops. Casey was subsequently transferred from PRPD to FBI custody in Ceiba, where he was confronted with this evidence, and in the course of further questioning, requested an attorney. It was there that his common-law wife, Crystal Peña (“Peña”), came to visit him. Statements Casey made to her during their exchange were overheard by law enforcement, and later admitted as evidence against him.

Further investigation revealed that on the morning of August 1, 2005, Luis Algarín (“Algarín”), a cashier working at the marina parking lot in Fajardo from which ferries to Culebra depart, witnessed a person he later identified in a photo array as Casey drive up to his booth in a gray truck, request to leave after losing his parking lot ticket, and pay with a twenty-dollar bill. Another parking lot employee, Peter Ávila–Natal, also observed on that same day in the lot a pick-up truck missing a driver's side window, and glass dust on the truck driver's elbow. The FBI recovered from the Fajardo parking lot a car window with what appeared to be a bullet hole in the middle, and a projectile which was later matched to the gun found in Casey's bedroom.

Law enforcement procured a warrant and searched Hernández's residence. A cadaver dog, trained to help locate decomposing bodies, gave alerting signals both inside and outside the residence. Officers questioned Hernández and seized several items, including a pair of muddy boots, pants, a glove, soil samples, and floor mats, from the premises.

Lizardi's backpack was then discovered in Luquillo, down the road from Hernández's home, at a location also just a mile from where Casey lived. It contained clothes and a towel with hair on it that law enforcement concluded was not Casey's, although no tests were conducted to ascertain whose hair it was. A few days later, Lizardi's body was also found in Luquillo, down a hill in a wooded area behind an abandoned structure that contained traces of blood. FBI analysis identified DNA from swabs taken of the abandoned structure, Lizardi's truck, the twenty-dollar bill from the parking lot, and the blood-stained flip-flops, as Lizardi's.

B. Procedural History

In February 2007, a grand jury returned a three-count indictment charging Casey with (1) carjacking with the intent to cause death or serious bodily injury (18 U.S.C. § 2119(3) ); (2) possession, use, discharge, carrying of firearms during a crime of violence resulting in another's death (18 U.S.C. § 924(j) ); and (3) being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)). Casey pleaded not guilty on all counts. That July, the government filed a notice of intent to seek the death penalty.

825 F.3d 9

Pretrial proceedings took place over six years, mostly concerning the death penalty. Suppression motions were heard in the fall of 2011 and rulings issued in January 2013. Casey moved to suppress the evidence discovered in his bedroom on the ground that his grandparents had neither actual nor apparent authority to consent to the warrantless search, arguing the search was unlawful and the evidence it yielded inadmissible. Finding that the room routinely remained unlocked and that Casey's grandparents had permission to enter it on a regular basis, the district court denied this motion. Casey also moved to suppress Algarín's photo array identification from the Fajardo parking lot; statements elicited from him allegedly in violation of his Miranda rights; words he exchanged with his wife while in custody; and photos of Lizardi's decomposing body. These motions were denied as to all but certain statements the district court concluded Casey made after invoking Miranda protections.

In September 2012, the district court held a hearing on ethical misconduct allegations lodged by the government against defense counsel. Casey's subsequent motion to disqualify the district court judge based on claims of impartiality and improper ex parte communication with the government was denied.

Juror questionnaires were completed in October and November 2012. Voir dire was held in February 2013. The district court rejected Casey's Batson challenge to the government's peremptory strikes of three black panelists. Trial then commenced in March.

Casey argues that a number of erroneous rulings at trial amounted to a violation of his right to confrontation and to present a defense. In particular, he contends it was improper to preclude evidence which would have shown that the PRPD declined to properly investigate the possible involvement of Hernández, the dealer with whom the August 1, 2005, drug buy had been arranged, in Lizardi's death. The subject of such purported evidence included a PRPD internal investigation into its own possible negligence in the planning and execution of Lizardi's undercover operation.

After nine days of trial, the jury returned a verdict of guilty as to all counts but rejected the death penalty. A judgment of conviction was entered on June 13, 2013, and Casey was sentenced to life in prison. This appeal followed.

II. Discussion

A. Prosecution's Use of Peremptory Challenges

Casey, a black American transplant from Brooklyn to Puerto Rico, argues the district court erred in finding no equal protection violation in the government's exercise of peremptory challenges to exclude three black persons from the jury, he claims, solely on the basis of race.

1. Batson Challenge

In Batson v. Kentucky, the Supreme Court reaffirmed the longstanding principle that a criminal defendant's equal protection rights are violated when jury selection at his trial is “affected by invidious racial discrimination.” United States v. Girouard , 521 F.3d 110, 112 (1st Cir. 2008). The “[e]xclusion of black citizens from service as jurors,” stated Batson , “constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.” Batson v. Kentucky , 476 U.S. 79, 85, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). While Batson initially focused on whether the defendant or an excluded juror was part of a cognizable racial group, subsequent cases broadened Batson doctrine to encompass an individual juror's right not to

825 F.3d 10

be discriminated against—making the relevant query whether “a peremptory challenge was based on race.” See Sanchez v. Roden , 753 F.3d 279, 292 (1st Cir. 2014) (quoting Snyder v. Louisiana , 552 U.S. 472, 476, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ).

Batson outlined a three-part burden-shifting framework, a “Batson challenge,” through which a defendant can dispute the government's use of peremptory strikes as racially motivated and demonstrate an equal protection violation. See Foster v. Chatman , ––– U.S. ––––, ––––, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016). The defendant is required to first make a prima facie showing that race formed the basis for a peremptory challenge. The trial court must consider all relevant “circumstantial and direct evidence of intent as may be available” to determine whether an inference of racial motivation may be drawn. Batson , 476 U.S. at 93, 96, 106 S.Ct. 1712 (quoting Arlington Heights v. Met. Hous. Dev. Corp. , 429 U.S. 252, 266, ...

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