United States v. Colon

• Decision Date: 26 February 2014
• Docket Number: No. 13–1156.,13–1156.
• Citation: 744 F.3d 752
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Juan COLON, Defendant, Appellant.

744 F.3d 752

UNITED STATES of America, Appellee,

v.Juan COLON, Defendant, Appellant.

No. 13–1156.

United States Court of Appeals, First Circuit.

Feb. 26, 2014.

Recognized as Invalid

18 U.S.C.A. § 3501(a)

Theodore M. Lothstein, with whom Lothstein Guerriero, PLLC, was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, STAHL and KAYATTA, Circuit Judges.

KAYATTA, Circuit Judge.

Juan Colon was convicted, after a three-day jury trial in the United States District Court for the District of Rhode Island, of possession of marijuana with intent to distribute, possession of a firearm by a convicted felon, and possession of a firearm with an obliterated serial number. A significant part of the government's case consisted of incriminating statements he made to the police over the course of several encounters. In turn, a significant part of Colon's defense was to argue that the statements should not be believed for a variety of reasons, including lack of voluntariness. A federal statute, 18 U.S.C. § 3501(a), provides that in cases such as this, the trial court, after having satisfied itself that a confession was given voluntarily, “shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.” Colon now appeals, arguing that the trial court committed plain error by failing in its jury instructions to hew closely enough to the statute's text. Finding no reversible error, we affirm.

I. Facts

The facts giving rise to this appeal are undisputed. On December 2, 2011, police in Providence, Rhode Island sought and obtained a “no-knock” search warrant entitling them to search the first floor apartment of the building at 28 Homer Street in Providence. The police obtained the warrant based on information they had collected during a month-long investigation focusing on the apartment and one of its inhabitants, Juan Colon, who lived there with his girlfriend, Rosaris Cabreja, and their two-year-old daughter. The warrant authorized officers to search both the first floor apartment and Colon himself for narcotics and firearms.

At approximately 7:30 p.m. on December 5, 2011, and aware that Colon was in the apartment, police battered down the front door and entered. According to the trial testimony of Detective John Black, the first officer to enter the apartment, Colon was armed. Upon the officers' entry, Colon rose from a seat in the apartment's living room, ran through a hallway to a bedroom in the back of the apartment, and threw the firearm he had been holding behind a nightstand.¹ At that point, officers took Colon to the ground, handcuffed him, presented him with the search warrant, explained why they were at the residence, and read him his rights.

According to Detective Black, Colon then told Black that he was a marijuana dealer and that any narcotics and firearms in the apartment belonged to him, not to Cabreja. He showed Black thirteen bags of marijuana, individually wrapped, and denied having other drugs in the apartment. Perhaps skeptical, officers continued to search the apartment while Colon, who was secured in a room separate from Cabreja and their daughter, repeatedly yelled apologies to Cabreja in both English and Spanish. Eventually, officers took Colon to the police station, leaving Cabreja and the child behind.

After Colon had been removed from the apartment, police found 3.55 grams of cocaine, stored with zip lock bags, in a baby wipes container in a kitchen cabinet that also contained a digital scale with cocaine residue on it. Elsewhere in the apartment, police found a small pill bottle containing marijuana, a backpack containing ammunition in various calibers, and two rolls of cash, totaling $9,900, in the pocket of a pair of blue jeans that also contained Colon's identification.

According to Black's testimony, after they found the cocaine, officers told Cabreja that they had found a firearm in the residence, that they knew that Colon was dealing marijuana and cocaine out of the residence, and that Colon had given them consent to search two vehicles registered to Cabreja. Having so informed her, they additionally sought and obtained her consent to search the vehicles.² After Cabreja signed written consent forms for both vehicles and produced keys for one, police searched both vehicles, finding in one of them a .25 caliber handgun, $10,000 in cash, and paperwork bearing Colon's name, and finding in the other a .45 caliber handgun containing eight live rounds.

Following these discoveries, police placed Cabreja under arrest for possession of firearms and narcotics and took her back to the station, where Black questioned her in an interview room. At the close of that questioning, Black went to a different interview room, where he questioned Colon, who had been waiting for approximately ninety minutes in a cell block before being transported to an interview room and handcuffed to a wall. According to the recording of that questioning,³ Black first read Colon his Miranda rights, which Colon again waived.⁴ Black then proceeded to briefly ask about Colon's daughter and about Colon's relationship with Cabreja. Upon determining that Colon's daughter was two years old, that Cabreja was the daughter's mother, and that Colon and Cabreja had been dating for approximately five years, Black began his inquiry into the offenses as follows:

[Detective Black:] Alright, listen, here's the deal. You've got some problems right now. You got some issues. The gun you had on you tonight it's got a scratched off serial number. That's not good. It's not good it's got a laser [sight]. And it's not good that you're in possession with intent to deliver cocaine and marijuana while you're in possession of a firearm. That's not good. Okay? I'm going to ask you—I'm going to talk to you about a couple of things. And what I need to determine from you is who to charge. I mean you're getting charged. You[r] cooperation will go a long way like I told you earlier on, you know, how much time you do ultimately and how much a judge finds you to be, you know, being able to be rehabilitated. Okay? ... I have your girlfriend here.

Black then proceeded to interrogate Colon, largely by explaining the details of what he had observed during the execution of the warrant and asking Colon to confirm them. During the interrogation, Colon admitted that the marijuana and the Ruger SR9 firearm found in the house belonged to him. He also admitted, contrary to what he had suggested at the apartment, that he had sold cocaine.

Soon after Colon confessed to having sold marijuana and cocaine, the memory on Black's recorder ran out. Black continued the interrogation for a short while before noticing, departing the interview room to clear space on the recorder, and returning. The transcript reveals that soon after Black returned, Colon admitted that the firearms in the cars belonged to him.⁵ At the end of the interrogation, Black told Colon that he would “talk to [his] boss and “try to get [Cabreja] home to the baby.” After the interrogation, the police released Cabreja without charging her and permitted Colon to enter the interview room in which she had been detained in order to say goodbye. The police detained him overnight, and while some prisoners were transported to court for arraignments early the next morning, Colon remained in his cell block at the station.

The following morning, Special Agent Kevin McNamara interrogated Colon in an interview room at the station. McNamara read Colon his Miranda rights, but in what he referred to at trial as an “oversight,” failed to have Colon sign a waiver form. McNamara's digital recording of the interrogation was played for the jury and transcribed. During the interrogation, Colon admitted to having purchased two of the firearms and having received the third from an individual who had found it. Colon further admitted to using and selling marijuana.

On April 4, 2012, Colon was indicted on five counts related to the above incidents. Count 1 charged him with possession of cocaine with intent to distribute; Count 2 charged him with possession of marijuana with intent to distribute; Count 3 charged him with possession of a firearm by a convicted felon; Count 4 charged him with possession of a firearm in connection with the drug trafficking crimes alleged in Counts 1 and 2; and Count 5 charged him with possession of a firearm with an obliterated serial number.

Prior to trial, Colon moved to suppress the statements he made to Black and McNamara, arguing that any waiver of his Miranda right to remain silent was a product of threats and coercion. Though that motion was denied, Colon's defense strategy focused largely on convincing the jury that the statements he had made to the two officers could not be believed. Prior to trial, Colon proposed the following jury instruction:

You have heard evidence that Juan Colon made certain statements in which the government claims he admitted certain facts. Testimony regarding unrecorded statements, particularly in circumstances where recording equipment is available, must be viewed with caution. It is for you to decide (1) whether Mr. Colon made the statements he is alleged to have made, and (2) if so, how much weight to give them. In making those decisions, you should consider all of the evidence about the statement, includingthe circumstances under which the statement may have been made and any facts or circumstances tending to corroborate or contradict the version of events described in the alleged statement.

During the opening statement, Colon's lawyer relied on the theme that Colon's inculpatory statements need be viewed in context, telling the jury that when Colon was interviewed at the station, “he didn't know where his daughter was, and the detective who spoke to him told him repeatedly...