United States v. Fletcher

• Decision Date: 28 December 2022
• Docket Number: 20-1131
• Citation: 56 F.4th 179
• Parties: UNITED STATES of America, Appellee, v. Timothy FLETCHER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

56 F.4th 179

UNITED STATES of America, Appellee,

v.Timothy FLETCHER, Defendant, Appellant.

No. 20-1131

United States Court of Appeals, First Circuit.

December 28, 2022

K. Hayne Barnwell for appellant.

Abigail Frisch Vice, Bristow Fellow, Office of the Solicitor General, United States Department of Justice, with Rachael S. Rollins, United States Attorney, and Alexia R. De Vincentis, Assistant United States Attorney, on brief, for appellee.

Before Kayatta, Selya, and Gelpí, Circuit Judges.

KAYATTA, Circuit Judge.

A jury convicted Timothy Fletcher of being a felon in possession of a firearm and ammunition, and of possessing cocaine and cocaine base with intent to distribute. The district court then imposed a sentence above the range provided by the United States Sentencing Guidelines. Fletcher requests a new trial because the district court did not allow him to call a witness who would have asserted her Fifth Amendment right to avoid incriminating herself and because one of the court's instructions ran afoul of Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). He also raises numerous challenges to his sentence. For the following reasons, we affirm both the conviction and the sentence.

I.

Shortly before 10:00 p.m. on April 2, 2015, local police officers trailed Brooke Cotell, a known heroin dealer, to "Simple Storage," a storage facility in the village of Hyannis in Barnstable, Massachusetts. An officer observed Fletcher exit Cotell's vehicle and walk toward Simple Storage, returning fifteen minutes later. Continuing to follow Cotell's vehicle, officers observed Fletcher selling one gram of cocaine in what he did not realize was a controlled buy. After the vehicle parked at the Clarion Hotel, the officers proceeded to execute a warrant authorizing the search of Cotell, Fletcher, the vehicle, and a room reserved at the Clarion by Cotell and Fletcher. The officers found on Fletcher's person eleven individually wrapped baggies containing what was later confirmed to be cocaine and crack cocaine. They also found on Fletcher $1,168 in cash, two cell phones, a key fob for entry to the Simple Storage facility, and a key to a U-Haul lock.

When questioned, Cotell sought to trade information for leniency, telling the officers about Fletcher's drug dealing and his use of a storage unit at Simple Storage. The officers obtained a warrant to search the storage unit. They also questioned the owner of the facility, Andrew Adair. At trial, Mr. Adair testified that Fletcher's mother, accompanied by Fletcher, had rented a storage unit one year and eight months previously, stating a desire to store her son's sneaker collection in the unit. During the ensuing one year and eight months, Mr. Adair saw Fletcher access the unit about once per month. He saw Fletcher's mother only two or three times, and never saw anyone else access the unit with Fletcher. Simple Storage's software confirmed that the fob found on Fletcher had been used to access the facility on the evening of Fletcher's arrest.

In the unit rented by Fletcher's mother, the officers found 223 boxes of sneakers, in and among which were three pistols and ammunition, bags containing 179.11 grams of cocaine, 2.89 grams of crack cocaine, cutting agents, scales, $1,420 in cash, and paperwork of various types in Fletcher's name. They also obtained Fletcher's prints from one of the pistols and from a magazine for one of the other pistols.

Fletcher's defense at trial was that the contraband found in the storage unit did not belong to him. His counsel theorized that Cotell or a prior girlfriend, Erica Lopes, exclusively controlled possession of the drugs. Unconvinced, the jurors found Fletcher guilty of being a felon in possession of a firearm and ammunition, and of possessing cocaine and cocaine base with intent to distribute. The district court imposed a sentence of 168 months, 31 months above the top of the Guidelines sentencing range of 110–137 months.

II.

Fletcher's first claim of error during his trial is the district court's decision not to allow him to call his mother to testify. Toward the end of the trial, the following discussion ensued:

[Defense Counsel]: With regard to Ms. Fletcher, Your Honor, my understanding is she's going to invoke her Fifth Amendment privilege with respect to items in the storage unit. I subpoenaed her because of the very fact that I believe that this information is exculpatory to my client. I also understand that -- you know, my intention was to ask other questions with regard to Ms. Fletcher that did not pertain to the storage unit, but did pertain to conversations with Mr. Adair, or what she saw when she arrived to that unit.

My desire would be to elicit some questioning not -- that I know will not cover the immediate search or the items inside, other than to say what she found when she arrived to the Simple Storage area.

She will also talk about this individual named Erica Lopes.

She will also reference any knowledge that she might have of Brooke Cotell.

But I do know that she is going to be invoking her Fifth Amendment privilege, and as a result, I think that -- that's why I brought it to the Court's attention.

THE COURT: You're doing the appropriate thing, although I think under our rules, a witness can't be selective about what he or she chooses to testify to. Generally, if you take the oath, you -- and I can't believe that [the prosecutor] wouldn't be asking questions, and why she would take the Fifth Amendment is perfectly apparent to me.

[Defense Counsel]: Your Honor, I would -- I want to ask those questions myself, right. And so I was contacted just this past week by attorneys for Ms. Fletcher, and I do know -- the court may be aware, but she was charged in the state court for possession without -- you know, improper storage, and then that was dropped without prejudice to being refiled. That was only on the one weapon that was physically registered to her.

So, as a result, I do know -- I understand the Court's position, Your Honor, but it is -- it was our intention to call her.

I would ask, at the very least, that if she is called, that I could call her on the stand and then she can invoke her Fifth Amendment privilege on the stand, Your Honor.

THE COURT: Well, as you know, in state court that would never be permitted because the rule is pretty absolute. It's a little more flexible in federal court. I think the leading case is United States v. Johnson, which it's a matter of discretion for the court. Rather than put her to the embarrassment of being on the witness stand and then being taken off ... I would be willing to simply instruct the jury that it was the intention to call her, that she indicated that she will not testify under her Fifth Amendment right as to any matter that involves the storage locker or its contents. I think that might be better than having her on the stand in front of the jury.

So why don't we handle it that way?

Fletcher did not call his mother, and the court instructed the jury as follows:

I'm going to tell you now that he would have called his mother, T[ ]eresa Fletcher, but I've been informed by her lawyer that, if called, she would assert the Fifth Amendment privilege and refuse to answer any question regarding the storage locker or its content. A witness obviously can't selectively testify. So she understands that the defendant under statute will not be called.

As the foregoing excerpts from the trial transcript demonstrate, no one expressed any doubt that Fletcher's mother would invoke the Fifth Amendment privilege and refuse to answer questions "as to any matter that involves the storage locker or its contents." And given her name on the lease, the contents of the locker, and the specter of refiled criminal charges in state court, no one disputed that the invocation of her right not to testify about that subject matter was justified. Finally, no one objected to the instruction given by the court.

On appeal, Fletcher now reasserts his contention that he should have been permitted to call his mother to the stand to ask specific questions such as he proposed. Instead of allowing a "blanket assertion" of privilege, Fletcher contends that the district court should have enforced the trial subpoena to bring his mother and her counsel into court and then conducted a voir dire inquiry to determine whether any lines of questioning fell outside the scope of the privilege and could be fairly explored by both parties.

As to the content of his proposed questions, Fletcher asserts on appeal that he would have elicited testimony from his mother "about her observations and knowledge of Lopes and Cotell including whether she ever saw them access the Simple Storage building or Unit 26 itself and if so, when, whether she ever saw them with the key fob and keys to Unit 26, whether she saw either of them put items in or take items out of Unit 26, whether she knew anything about their drug dealing or drug possession and/or whether she knew anything about their motivations or biases against Fletcher." Fletcher submits that this proposed testimony would have "put enough meat on the bones" of the defense's theory that "Brooke Cotell or Erica Lopes stored the cocaine in the storage unit without Fletcher's knowledge." More particularly, Fletcher contends that the testimony would have bolstered his theory that Cotell "could have taken his keys and put the cocaine in Unit 26, allowing her to pass blame to Fletcher if she were ever caught."

We review rulings sustaining invocations of Fifth Amendment privilege for abuse of discretion. See United States v. Ramos, 763 F.3d 45, 53 (1st Cir. 2014). Generally speaking, our case law prefers that the trial court conduct a "particularized inquiry" to see whether there are specific questions that are outside the scope of the privilege and can be explored by both parties without unfairness. United States v. Pratt, 913 F.2d 982, 990 (1st Cir. 1990) ; see United States v. Cascella, 943 F.3d...