United States v. Freitas
| Citation | 904 F.3d 11 |
| Decision Date | 06 September 2018 |
| Docket Number | No. 17-2092,17-2092 |
| Parties | UNITED STATES of America, Appellee, v. Antonio M. FREITAS, Defendant, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Phillip N. Beauregard, New Bedford, MA, with whom Law Offices of Beauregard, Burke & Franco was on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
Before Torruella, Thompson, and Barron, Circuit Judges.
Antonio Freitas stands convicted of bulk-cash smuggling and currency structuring, in violation of 31 U.S.C. §§ 5332(a) and 5324(c).1 Freitas believes we must vacate his convictions because, according to him, the district judge quadruply erred—first by admitting certain statements under the coconspirator exception to the hearsay rule; next by instructing the jury that the government can prove the concealment element of the bulk-cash-smuggling charge through evidence of structuring, an instruction that wrongly removed the mental-state element from both crimes; then by not granting his motion for acquittal on the structuring count; and finally by not adequately responding to the government's prejudicial comments in closing argument and at sentencing. Disagreeing, we affirm.
Presented in the light most favorable to the jury's verdict, see United States v. Rodríguez–Soler, 773 F.3d 289, 290 (1st Cir. 2014), the underlying facts are easily summarized.
In May 2015, an IRS agent posing as a financial agent named "Bob" cold-called Carlos Rafael. Nicknamed "the Codfather," Rafael then owned Carlos Seafood, a commercial-fishing business located in New Bedford, Massachusetts. "Bob" told Rafael that he and a man named "Lenny"—actually an undercover agent as well—wanted to buy Carlos Seafood. His interest piqued, Rafael agreed to meet with "Bob" and "Lenny" to discuss a possible sale.
Two times the next month, in June 2015, "Bob" and "Lenny"—wearing concealed body wires—met with Rafael at Carlos Seafood. Rafael told them that he might be willing to part with the business if they could come up with $150 million or so. He also bragged that he had fish sales that were not being taxed properly and that he avoided paying income tax on piles of cash he was getting from sales to a New York customer.
After summering in Portugal, Rafael told the agents in a secretly-recorded meeting in October 2015 that he had a Portuguese friend named "Freitas" who worked for the "Sheriff's Department" and could sneak cash by security at Boston's Logan International Airport ("Logan"). Given the importance of what he said there, we quote from the transcript of the recorded conversation at length (fyi, Rafael is identified in the transcript by his first name, Carlos):
The transcript continues:
Rafael explained that Freitas worked on customs with the immigration unit of the Sheriff's Department. And he said that Freitas could also help them get their cash out of the country by bypassing airport security.
A few days later, still in October 2015, "Bob" asked Rafael over the phone if Rafael could help him and "Lenny" get their money around airport security so that they could take it to Portugal. All right, Rafael said. During another phone call, also in October 2015, "Bob" asked Rafael if Freitas could help get the money through the airport. Rafael said yes, but added that "Bob" could not meet Freitas in person. This is what Rafael proposed: "Bob" would give the money to Rafael. Rafael would hand the money to Freitas. Freitas would get the money through security and give the money to back to Rafael. And Rafael would deliver the money back to "Bob."
Checking some databases, agents then found an Antonio Freitas, an employee of the Bristol County Sheriff's Office assigned since 2007 as a task-force officer with U.S. Immigration and Customs Enforcement ("ICE") in Boston. Freitas, agents learned, had a security badge for Logan that let him bypass security. And Freitas's employment file showed that in September 2014, he got promoted to the position of "Sergeant ICE Investigations."
Agents also learned that around the time of his promotion, Freitas completed a multiday training program for ICE officers that covered (among other topics) financial crimes, including structuring and bulk-cash smuggling—an instructor, for example, told attendees that structuring involved "having more than $10,000 in cash and breaking it into smaller amounts to conduct financial transactions in order to avoid the reporting requirements." At the end of the training, Freitas took and passed a multiple-choice exam, getting every question right—including correctly answering that air passengers leaving the United States must report the "transportation of currency in excess of $10,000" on them "or in their luggage."
At some point in 2016, Rafael asked Freitas to courier $20,000 from the United States to Portugal and deposit the funds into Rafael's bank account there. Freitas felt uncomfortable taking that much cash because he knew he would have to file a disclosure form. But he took $17,500 from Rafael and divided it between himself and his girlfriend, Giovania Lima (whom the government called to testify at trial). With something like $8,500 or $9,000 in his bag and the rest in hers, Freitas and Lima passed through Logan's security one evening in early February 2016 and jetted off to Portugal (agents surveilling the scene saw them board without incident). Once there, Freitas made the required deposit for Rafael. Bank records confirm that deposit. And phone records reveal that Freitas and Rafael exchanged multiple calls right before the Portugal getaway. Lima would later say that just before the trip, Freitas told her that he had to take a friend's money to Portugal. Freitas got her travel bags together, she said. And looking at her bags, she saw an envelope with $4,000 or $9,000 scrawled across it. She understood that she had to carry that envelope with her on the flight and that Freitas would carry a second envelope with him—which is precisely what they did. And while in Portugal, Lima added, Freitas deposited "about $17,000" into a bank account.
Coinciding with the arrest of Rafael, law-enforcement agents confronted Freitas at the end of February. Among other things, agents asked him if Rafael ever asked him to carry money out of the country or circumvent airport screening. Freitas admitted taking money to Portugal for him earlier that month, saying at one point that he took $8,500 and at other points that he took $9,000. Agents also a played piece of the recording of the October 2015 meeting involving Rafael, "Bob," and "Lenny" (we block-quoted a snippet of the recording's transcript above). Listening to the audio, Freitas's face became flush. He then admitted that he had carried money for Rafael in the past because Rafael had helped him get a promotion and had co-signed a home-improvement loan for him.
All this, and more, led to Freitas's arrest and indictment on (as relevant here) bulk-cash-smuggling and currency-structuring charges. Agents arrested Rafael too. Waiving indictment, Rafael pled guilty to a raft of charges in a superseding information, including conspiracy, false labeling of fish, bulk-cash smuggling, tax evasion, and falsifying federal records. But Freitas rolled the dice and went to trial.
The government's witnesses testified consistent with the facts described above. Freitas's attorney called only one witness, Bristol County Sheriff Thomas Hodgson. Hodgson testified that he knew Rafael from the community, though he did not consider him a friend. Hodgson added that Freitas's becoming a "Sergeant ICE Investigations" was "not a promotion per se" but a change in status to a "designated rank" for a "specialty position." And as for how the change happened, Hodgson remembered Rafael's saying over the phone that he needed a promotion. But Rafael's call...
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