United States v. Rodriguez

• Decision Date: 28 March 2012
• Docket Number: No. 10–1984.,10–1984.
• Citation: United States v. Rodriguez, 675 F.3d 48 (1st Cir. 2012)
• Parties: UNITED STATES, Appellee, v. Carlos RODRIGUEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

675 F.3d 48

UNITED STATES, Appellee,

v.Carlos RODRIGUEZ, Defendant, Appellant.

No. 10–1984.

United States Court of Appeals, First Circuit.

Heard Oct. 3, 2011.Decided March 28, 2012.

Bernard Grossberg for appellant.

Cynthia A. Young, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Before the ink could dry on its verdict convicting Carlos Rodriguez of being a felon in possession of a firearm, the trial judge learned that a pocket-sized New Testament Bible was found in the jury deliberation room.The judge promptly notified Rodriguez's counsel of the discovery and he immediately filed a motion for a new trial.In his motion, counsel argued that the Bible's presence in the jury room violated Rodriguez's Sixth Amendment right to a trial before an impartial jury and his Sixth Amendment right to confront the witnesses against him.To determine what role the Bible may have played in the jury's deliberations, Rodriguez asked the trial judge to recall each juror for purposes of conducting an individual voir dire.The motion was denied.Thereafter, Rodriguez filed a second motion for a new trial, which, unlike the first, was related to the actual trial proceedings.This time around, Rodriguez claimed that the prosecutor made improper comments during closing and rebuttal arguments that violated Rodriguez's Fifth Amendment rights.Again, the motion was denied.

Before this court, Rodriguez contends the district court erred in denying both motions.Additionally, he claims that certain alleged errors by his defense counsel denied him his constitutional rights to due process and effective assistance of counsel.After careful review of the record, we discern no error and therefore affirm.

I.BACKGROUND

A.Facts

1.The Police Discovery of the AK–47

Late in the evening on September 24, 2006, a parked, unattended, green Toyota Camry caught the attention of Methuen police officer Justin Law(“Law”).He recorded the license plate number of the car and made several observations.First, he detected no signs of ignition damage, indicating to him that the car had not been stolen.Second, the hood of the car was warm, causing Law to believe that the car had been recently driven.The car was also unlocked.Law peered inside and saw in plain view the buttstock of an AK–47.He recognized the firearm “immediately.”

Law called for backup and he and his fellow officers removed the AK–47 from the car and looked it over—it was loaded with one round of ammunition in the chamber and 24 additional rounds in the magazine.With the assistance of other responding officers, Law searched the entire inside of the car, as well as the trunk.Inside the car, officers discovered marijuana, a scale, a GPS, binoculars, and a driver's license issued to William “Billy” Ryan.¹Body armor was found in the trunk.Sometime later, Law ran the license plate number of the car and identified Melodee Sweeney(“Sweeney”) as the owner.

2.The Police Encounter with Rodriguez

Methuen Police Officers Jeffrey Brouck(“Brouck”) and James Gunter(“Gunter”) were among those officers who responded to Law's call for backup.Brouck said he was on patrol in the parking lot at Morse Park, a park containing a few baseball fields and a skateboard park, for “under ten minutes” before he was ordered by a sergeant “to go out and look for any individuals in [the] immediate area.”As he left the park, Brouck “saw a Hispanic male walking towards [him] wearing a red shirt, a black hat, and light blue pants.”This individual was later identified as Rodriguez.Brouck stopped his cruiser.

Gunter, who was directly behind Brouck in a separate police car, stopped as well and together the officers approached Rodriguez.Gunter asked him if he had any identification, to which Rodriguez replied that he did not.Nonetheless, he offered a name—“Edward Santiago”—and a home address—48 Warren Street, Lawrence, Massachusetts.He also provided a date of birth and Social Security number.Brouck radioed this information to Methuen dispatch who confirmed that “Santiago” had a valid driver's license and no outstanding warrants.When asked where he had been immediately before his contact with the officers, Rodriguez said he had been at a nearby Dunkin' Donuts.After answering all of the officers' questions, Rodriguez asked them to call him a taxi, which they did.After sending Rodriguez on his way the officers split up.Brouck went to the Dunkin' Donuts Rodriguez said he had visited and Gunter headed to 48 Warren Street, the home address Rodriguez had given.Come to find out, 48 Warren Street did not exist.

3.Rodriguez's phone conversation at Dunkin' Donuts

Brouck found out Rodriguez had in fact visited the nearby Dunkin' Donuts earlier that evening.At trial, a former Dunkin' Donuts employee, Joseph John Garofalo(“Garofalo”), testified that on the night of September 24, 2006, a “[v]ery aggressive and mad” customer had caught his attention.Garofalo described the customer as a “Spanish male about five-seven,” who was wearing a “red hat [and] baggy clothes.”He said the customer was “walking around, talking,” and “[j]ust [seemed] very agitated.”While inside the Dunkin' Donuts, the man—whom Garofalo later identified as Rodriguez—made approximately three different phone calls from his cell phone.Garofalo overheard one end of one of the conversations.He heard Rodriguez say, “[t]ell the girl the car had been stolen.”He also heard Rodriguez say: “Go get the AK–47 out of the car.And there's something else in the car.Go get it.It's in the trunk.You know what it is.”Not long thereafter, Rodriguez headed out of the Dunkin' Donuts, stopped to ask Garofalo for a cigarette, and walked away.

4.Sweeney's statement to police—Take One—and Rodriguez and Sweeney's flight to New York

Around midnight on September 24, 2006, Lawrence police contacted Sweeney and told her she needed to come to the station to get her car.She did not go until approximately 5 p.m. on September 25, 2006.At the station Lawrence and Methuen police officers interviewed Sweeney four separate times, over the course of four hours.During these interviews, Sweeney told police that someone had stolen her car after she left the keys in it while running a quick errand.This was a lie.When asked if she had seen Rodriguez the day before, on September 24, 2006, she told the officers no.This too was a lie.²

The police, suspicious of Sweeney's story, told her that they did not believe her.Moreover, they let her know that they were looking for Rodriguez, had found an AK–47 and body armor in her car, and were planning to subpoena her phone records.After the interviews were over, Sweeney did not stick around.She headed to her home in Pelham, New Hampshire.According to Sweeney, Rodriguez “showed up at [her] house late that night” and Sweeney filled him in on the specifics of what happened at the police station.At trial, Sweeney said that Rodriguez acted “nervous” upon learning that the police were looking for him and he decided “[they] needed to get out of [Massachusetts]” for awhile.According to Sweeney, Rodriguez felt the couple should flee to Rochester, New York.So they did.They hung out there for approximately three weeks at Rodriguez's uncle's house.

5.Sweeney's statement to police—Take Two—upon her return to Massachusetts

Eventually, Sweeney decided to return to Massachusetts because of her children.³Knowing full well the police would likely have more questions for her, she and Rodriguez concocted a story, first to dissuade the police from looking for Rodriguez in New York, and second, to clear Sweeney's name.The duo agreed that Sweeney would tell the police that she and Rodriguez had taken her car to Worcester, Massachusetts together and that it had taken her three weeks to come back because she“was scared for [her] life.”⁴Sticking to their plan, Sweeney went to the Methuen Police Station on October 30, 2006 and repeated the false story to the police.To this fabrication, she added yet another—that she and Rodriguez “fought,” that “[she had been] abused by him,” and that he had taken her to Worcester against her will.Additionally, she told the police that on September 24, 2006, Rodriguez had taken her car without her permission and then told her to report it stolen.

6.Sweeney's testimony before the Grand Jury—Take Three—and Sweeney's statement during the summer before trial—Take Four

Rodriguez stayed in New York until he was found and arrested there around December of 2007⁵—approximately 15 months after the discovery of the AK–47 in the abandoned car.

In July of 2008, Sweeney appeared before a federal grand jury as a witness for the government in regard to the present case.There, she denied having seen or known anything about the AK–47, admitted that her October 30, 2006 story to police about going to Worcester had been a lie, and stated that Rodriguez had gone to New York, but that she had stayed in touch with him by phone.

Changing stories one more time during the summer of 2009, Sweeney told the prosecutor assigned to the case and a Bureau of Alcohol, Tobacco, Firearms, and Explosives agent that she was actually with Rodriguez in New York—not that she had simply kept in touch with him by phone.

7.Sweeney's testimony on the eve of trial—Take Five

On Sunday, September 20, 2009, the night before Rodriguez's trial, Sweeney signed a letter of immunity insulating her from prosecution based on the prior, false statements she made to police officers throughout their investigation, as well as the false statements she made before the grand jury.She was also granted immunity for any of the underlying criminal acts she had admitted to.After securing this immunity agreement Sweeney told the government for the first time that she had seen Rodriguez with the AK–47 found in her car the...