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Full Opinion
United States Court of Appeals
For the First Circuit
No. 08-1766
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR DIAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Gajarsa* and Lipez, Circuit Judges.
Martin J. Vogelbaum, Federal Defender Office, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael K. Loucks, Acting United States Attorney, was on brief, for
appellee.
March 3, 2010
__________________
*Of the Federal Circuit, sitting by designation.
LIPEZ, Circuit Judge. Appellant Victor Diaz was found
guilty of conspiring to engage in the sexual trafficking of
children based on his involvement in a prostitution business,
operated by his niece, that employed several minors. See 18 U.S.C
§§ 371, 1591. On appeal, he asserts that his right to a fair trial
was compromised by the district court's failure to investigate an
incident of premature jury deliberations. He also claims that the
court improperly admitted two sets of hearsay statements: (1)
comments made by two minors during the course of prostitution calls
that had been set up by police officers in Boston and Cambridge,
and (2) statements made by his niece during the Cambridge sting
operation.
We conclude that the district court did not abuse its
discretion in the handling of the jury deliberation issue and that
all of the statements were either properly admitted or harmless.
We therefore affirm appellant's conviction.
I.
A federal grand jury returned a six-count indictment
charging Diaz and his niece, Evelyn Diaz,1 with conspiracy to
engage in the sexual trafficking of children, in violation of 18
U.S.C. §§ 371 and 1591. Evelyn pled guilty to the conspiracy
charge and the other five counts, which alleged substantive sex
1
To avoid confusion, we refer to Evelyn Diaz by her first
name throughout the remainder of the opinion.
-2-
trafficking offenses that did not involve Diaz. A jury found Diaz
guilty of the conspiracy charge after a four-day trial.2
The facts underlying the charge, as the jury could have
found them, are as follows. Evelyn operated a prostitution
business in the Boston area from at least 2003 through the time of
Diaz's arrest in April 2005. Evelyn, who sometimes used the name
"Messiah," advertised her business as an escort service in various
publications and online, including on Craigslist, under the name
"Messiah's Adult Entertainment." Her group of prostitutes included
her two teenage sisters, "C" and "P," who were both under age
eighteen.
Diaz knew that Evelyn ran a prostitution business whose
employees included minors. In 2001, he had urged his girlfriend,
Evalicia Torres, who was then fourteen years old, to stay away from
Evelyn because she was reputed to be a prostitute. Torres,
however, moved in with Evelyn and two other women in July 2004,
when she was still a minor, and began working as a prostitute for
her. The women would entertain customers at the house where they
lived, at customers' homes or in hotels.
Law enforcement officers investigating prostitution
activities set up sting operations in March and April 2005, first
in Cambridge and then in Boston. On March 25, Cambridge police
2
Diaz was sentenced to a term of imprisonment of fifty-one
months and twenty-four months of supervised release.
-3-
officers occupied two adjoining rooms in a Cambridge hotel, one for
the undercover activity and one for surveillance. From the
undercover room, Detective Louis Cherubino called a phone number
listed on one of Evelyn's Craigslist ads and asked for a girl
pictured in the ad who was identified as "Jenna." A short time
later, a girl who said she was "Jenna" returned the call and made
plans to meet Cherubino at the hotel. Evelyn drove to the hotel
with her sister, C, who entered Cherubino's room and asked him for
$175. When asked what he would get in return, C replied "a full
service." C handed Cherubino a condom and said, "Put it on, you
won't be disappointed." The officers from the adjoining
surveillance room then entered, arrested C and took her into the
surveillance room. At the officers' direction, C called Evelyn and
asked her to come up to the room. Upon entering, Evelyn told C to
"shut up." Evelyn was read her Miranda rights, after which she
told the officers that C was eighteen years old and that Evelyn
drove her to various locations to give massages.
The second sting operation occurred on April 14 at a
Boston hotel, where officers again took two adjoining rooms.3
Detective Steven Blair called a telephone number listed in one of
Evelyn's Craigslist ads and asked for "two girls," specifying that
"they have to be young." The person on the other end, apparently
3
Evelyn was apparently out on bail following the first
arrest.
-4-
a woman, said "we can help you out," and gave Blair a price. A
short time later, Blair received a call from a man telling him that
the girls were "on their way."
An officer conducting surveillance outside the hotel,
Sergeant Paul Mahoney, subsequently saw a red Jeep pull up in front
of the hotel to drop off two females. The Jeep's driver, appellant
Diaz, drove the car to a parking lot behind the hotel. About
twenty minutes after the second phone conversation, two women
knocked on Blair's door and entered the hotel room. The older one
appeared to be eighteen to twenty years old and the younger one
between thirteen and fifteen. The younger one, Evelyn's sister P,
placed a call on her cell phone and told the man on the other end
that "[w]e're in."4
A conversation ensued about the services to be provided
and their cost. The older woman, Chavonne Lewis, stated that she
would provide "straight oral and masturbation" for $300. When
Blair asked if both women would do this, P stated, "I don't fuck.
I'll jerk you off." After Blair gave Lewis the $300, P said,
"[g]ive me the money, give me the money. I'll run it downstairs."
The officers in the adjoining room then entered, and Mahoney was
instructed to arrest the driver of the red Jeep. In a search of
the vehicle, Mahoney found, inter alia, cell phones, a business
4
Blair testified that he knew the person P called was male
because he could hear the person's voice on the phone.
-5-
card with the word "Messiah" and escort information, including
phone numbers, and a pink bag that contained condoms, among other
items.
Diaz was arrested and, after signing a waiver of his
Miranda rights, admitted in an interview with FBI Agent Tamara
Harty and Sergeant Detective Kelly O'Connell of the Boston Police
Department that he had driven P and Lewis to the hotel at Evelyn's
request. Harty, who had begun investigating Evelyn's escort
service about ten months earlier, testified that Diaz said that
Evelyn expected him to let her know when the prostitution call was
completed. He also admitted to driving females who worked for
Evelyn to prostitution calls on other occasions, including P, whom
he knew was thirteen years old. He said he was not paid for his
help, but drove the girls as a favor to Evelyn.
In his own testimony at trial, Diaz denied driving P to
prostitution calls or telling Agent Harty that he had done so. He
claimed that he did not know that C was involved in prostitution
until the March sting operation and did not know that P was
involved before his arrest. Diaz admitted driving the two women to
the hotel at Evelyn's request. He had expected, however, to pick
up only Lewis and said that P explained that she was going into the
hotel with Lewis so that Lewis would not be alone. He also said he
was not planning to pick up the women after the call, but pulled
-6-
into the parking lot so that he could watch a wrestling match on
the television in the car.
Diaz further explained that he had agreed to drive Lewis
at Evelyn's request because she threatened not to let him use her
car again. He had no car and relied on Evelyn to provide him with
a vehicle to visit his friends, go job hunting, help his mother and
see his daughter. He acknowledged regularly driving P and other
women working for Evelyn, but only on trips to visit friends or go
shopping.
II.
Appellant contends that the district court committed
reversible error in failing to investigate whether a juror note
given to the court about ninety minutes after the start of
testimony showed that the jury had engaged in premature
deliberations. We first describe in some detail the parties'
discussions with the court concerning the note and then consider
the court's response.
A. The Note and the Court's Colloquy with Counsel
The juror note was given to the court during a mid-
morning break in the cross-examination of the government's first
witness, Evalicia Torres. Although the note and its exact wording
are not in the record, the court reported that it asked about "the
meaning of conspiracy and what the government has to prove beyond
-7-
a reasonable doubt."5 The record indicates that the note was
signed by a single juror, but it referred to "our question."
Before Torres's cross-examination resumed, the court gave counsel
the opportunity to see the note, and then advised them that it
would respond by telling the jury "it's a legal question that I'll
address at the end in the instructions." Neither party objected,
and the court then spoke to the jury as follows:
One juror sent me a question about the meaning
of conspiracy and what the government has to
prove beyond a reasonable doubt. I will be
addressing all of those issues in detail
during my final instructions of law, so I will
not be discussing it right now. We'll
continue with the cross. But if you want to
ask questions, that was the right mode to do
it, and, as I said, I'll address that later
on.
The trial continued for about another ninety minutes, and
the jurors were then excused for the day. The next morning,
defense counsel returned to the subject of the note. She observed
that "the note is some evidence perhaps of premature deliberations
on the part of the jury," pointing out that the last line of the
note referred to "our question." She urged the court to question
the juror "to determine the context in which this note came to be
written." She explained that, if the note resulted from a group
discussion, "that would appear on its face anyway to be a violation
of the Court's instructions not to [discuss the case]" and the jury
5
The note was marked to be included in the record, but it was
not preserved.
-8-
would "at least need[] to be admonished, [and] if it's gone farther
than that . . . there may be some other action."
Counsel also commented that it was "very troubling" that
the note was written so early in the case: "I'm very concerned that
the jury is prejudging the case already and trying to figure out
what the verdict should be halfway through the testimony of the
first witness." Inquiry into the circumstances was warranted, she
stated, because it was difficult to know how to respond "in a
vacuum of knowledge." Rather than an individual voir dire, which
the government argued was unnecessary, counsel suggested that the
court could question the jurors as a group, without the lawyers
present, to be sure they were not "reaching some factual
conclusions."
The court acknowledged that the defendant's concern was
"very well taken," but it adopted the government's view that an
admonishment to the jury not to talk about the case and to
disregard any prior deliberations would be sufficient in the
circumstances. The court observed that, even assuming "the worst
case" – that the jurors discussed the meaning of "knowingly" –
"there's no remedy . . . other than what I'm about to do, which is
tell them not to do it again." The court also noted that everyone
had agreed with the court's decision the day before to tell the
jury it would instruct on the law later in the trial, and it
expressed a "reluctan[ce] to backtrack." It noted that the jurors
-9-
could not have discussed the facts very much in any event because
the trial was "only . . . an hour into the first witness."
Thus, when the jury returned, the court gave the
following instruction:
We reread a question that came in from
one juror yesterday after we got out, and
there was some concern there, and I wanted to
just reiterate something. You cannot discuss
this case in the jury room either. No one
should be deliberating now. And one word
there struck our attention. There can't be
any questions from the jury yet because you
haven't started deliberating yet, and you
can't start deliberating. So at this point,
if some individual juror wants to ask a
question, that's fine; but as a jury, no one
should be talking about the case. It's a flat
ban. And you might wonder why because you'll
just be talking about it in a day or two.
It's because you haven't heard everything.
You haven't heard all the witnesses, and you
haven't heard all the legal instructions, and
that's why we want you not to be talking about
it in the jury room. So to the extent that
there was any lack of clarity before, I'm
making it crystal clear now, when you go back
for the break or you go back afterwards or
tomorrow morning as you're coming in, no one
can talk about the case until I send the
verdict to you and give you the instructions.
No objections followed the instruction.
B. The Adequacy of the Court's Response
1. Standard of Review
When a defendant has timely objected to the district
court's handling of a claim of premature deliberation, we review
the court's response for abuse of discretion. United States v.
Mikutowicz, 365 F.3d 65, 74 (1st Cir. 2004). Because trial judges
-10-
enjoy broad discretion in addressing potential juror misconduct, we
"normally . . . will not reverse unless the judge's choice among
the various avenues available was patently unreasonable." United
States v. Lemmerer, 277 F.3d 579, 591 (1st Cir. 2002). Indeed, we
have held that the court's discretion is "at its broadest" when it
responds to an allegation of premature jury deliberations.
Mikutowicz, 365 F.3d at 74; see also United States v. Dominguez,
226 F.3d 1235, 1246 (11th Cir. 2000) (noting "broadest" discretion
"when the allegation involves internal misconduct such as premature
deliberations").
The government argues that an even higher hurdle – plain
error review – applies to this case because Diaz did not object to
the court's original response to the note or to its instruction the
next day. The government also contends that, because Diaz never
moved for a mistrial based on the jury's conduct, he may not now
claim entitlement to a new trial.
In response, Diaz asserts that his claim was fully
preserved by his request on the second day of trial that the
district court probe the possibility of improper jury
deliberations. He argues that his "delayed objection did not
impair the court's ability to craft a solution," noting that the
court could have at that point excused any jurors who had formed an
opinion about guilt or innocence. He further emphasizes that the
court expressly rejected the possibility of a mistrial, making it
-11-
futile for him to move for a mistrial or to object to the second
jury instruction.
We need not rule on the timeliness of Diaz's objection
because, even under the more favorable abuse of discretion
standard, his claim of reversible error is unavailing. With
respect to timing, we note only that, while Diaz's counsel was slow
to register an objection to the district court's original approach,
the court acknowledged that some remedy was still appropriate and
useful when the issue was raised on the second morning of the
trial. See United States v. Carpenter, 494 F.3d 13, 21 (1st Cir.
2007) (noting that "[t]he preservation requirement" is designed to
alert the trial judge to a party's objection to a ruling, with
adequate explanation, so the judge "can decide what course of
action to take to assure, so far as possible, the legal correctness
of the trial proceedings"). For present purposes, we can assume
for convenience that the abuse of discretion standard applies.
2. Analysis
Trial courts employ a multi-step framework in assessing
claims of juror misconduct, including premature deliberations.
See, e.g., United States v. Tejada, 481 F.3d 44, 52 (1st Cir.
2007); Mikotowicz, 365 F.3d at 74. The court first must ascertain
whether the allegation is colorable. Mikotowicz, 365 F.3d at 74.
If it is, the court must investigate to "assess[] the magnitude and
extent of any prejudice caused" and, where necessary, it must
-12-
consider prophylactic measures to alleviate the prejudice. Tejada,
481 F.3d at 52. If no curative measures appear adequate, the court
may grant a timely motion for mistrial. Id.
The district court in this case rejected the defendant's
claim at the threshold, refusing to probe the possibility that the
jurors had engaged in premature deliberations, and instead relied
on its firm instruction reminding the jurors of its earlier
admonition against discussing the case before all of the evidence
was presented. We cannot fault the court for that measured course
of action. Just the day before the note was received, after the
jurors were sworn, they had been told not to discuss the case until
after they heard all of the testimony.6 The note barely intimated
that the jurors had violated that prohibition at all, let alone
engaged in inappropriate deliberation. Although the use of the
pronoun "our" suggested a conversation among at least two jurors,
the note requested clarification only of a legal principle and gave
6
The court told the jury:
Now, a few words about your conduct as jurors. You
cannot talk about this case with anyone. . . . You cannot
talk to anyone about the case now. Once the case is
concluded, you can talk about it with whoever you want
to, but for now you can't. You can't even talk about it
in the jury room, and I say that because what we don't
want is the first three jurors deciding the case after
the first witness and then the next three after the next
one. It's important for you to hear all of the witnesses
and my instructions of law before you form an opinion as
to the appropriate outcome of this case.
-13-
no indication that the jurors had discussed the merits of the case
against the defendant.
In addition to the content of the note itself, the fact
that the trial had been underway for less than ninety minutes
diminishes the likelihood that the conversation that apparently
took place constituted inappropriate deliberations about the facts
of the case as then presented, or the defendant's guilt or
innocence. Conversations between jurors concerning the case they
are hearing do not always amount to premature deliberations. See
United States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004) ("Not
every comment a juror may make to another juror about the case is
a discussion about a defendant's guilt or innocence that comes
within a common sense definition of deliberation."); Mikutowicz,
365 F.3d at 75 (finding no duty to investigate where juror
expressed doubt about her ability to determine guilt because that
conversation was "a far cry from a conversation in which the jurors
discussed the merits of the parties' positions"). Indeed, the
district court observed that, "[t]ruthfully, the way [the jurors]
phrased [their question] and the way the law is going to go, their
focusing on that is exactly the right issue."
Diaz's counsel responded that she was "not necessarily
disagreeing" with the court's assessment, but pointed out that, if
asked, the jurors might say "they were actually reaching some
factual conclusions." The court deemed this hypothetical
-14-
possibility of juror misconduct an insufficient basis to justify
further inquiry, but it did not simply dismiss the defendant's
concerns. Rather, the court provided a remedy in the form of an
emphatic reminder that the jurors should not talk about the case.
Particularly given the ambiguous content of the note, the court's
handling of the situation was sensible and appropriate, and well
within the bounds of its broad discretion.7
III.
Diaz argues that the district court improperly allowed
the admission into evidence of seven out-of-court statements made
by Evelyn's teenage sisters, as well as two statements made by
Evelyn herself at the time of her arrest at the Cambridge hotel.8
He contends that these statements were all inadmissible hearsay.
Alternatively, he asserts that the statements should have been
7
In his reply brief, Diaz suggests that the district court
was acting under the misconception that, even if further
investigation revealed that the jurors had engaged in premature
deliberations, the only remedy would be a curative instruction. He
points to the court's observation that, "there's no remedy even if
they did talk about it . . . , other than what I'm about to do,
which is tell them not to do it again."
Whatever the court's understanding of the range of available
remedies, it is apparent that the court viewed the circumstances in
this case to present only a slight possibility of improper
deliberations, for which a curative instruction was a sufficient
remedy. As we have explained, that judgment is supportable.
8
Two of these seven "statements" consist of multiple
sentences that the parties grouped together for purposes of
discussion.
-15-
excluded because they were irrelevant and more prejudicial than
probative.
District court rulings on the admission and exclusion of
evidence are reviewed for abuse of discretion. United States v.
Rodríguez-Berríos, 573 F.3d 55, 60 (1st Cir. 2009); see also United
States v. Colón-Díaz, 521 F.3d 29, 33 (1st Cir. 2008) (noting that
the abuse of discretion standard ordinarily applies to rulings on
"whether to admit evidence over a hearsay objection").
A. The Teenagers' Statements
The government introduced four statements made by C
through the testimony of Cambridge Detective Cherubino and three
statements made by P through the testimony of Boston Detective
Blair. Two of the statements related to setting up the Cambridge
prostitution call. Although the speaker was not identified at the
time these statements were made, Diaz attributes both of them to C
and the record reflects general agreement as to that assumption.
The first such statement was made by the person who answered the
phone at the escort service when Cherubino called from the
Cambridge hotel to set up a rendezvous there, and the second was
made by the person who called him back a short time later. They
were:
". . . she told me that she would return a
call within five minutes."
"And there was discussion of the price for a
half hour for $175 for full service, and I
-16-
agreed, and I was told that she would respond
within a half hour to my location."
C's other two statements were made in the hotel room. According to
Cherubino:
"[S]he told me that she wanted to take care of
the financial obligation and asked me for the
$175 . . . ."
"I asked the female what I would get for this
fee, and she replied "'a full service.'" She
also remarked upon handing Cherubino a condom:
"'Put it on. You won't be disappointed.'"
P's three challenged statements, which all occurred in the Boston
hotel room where she and Lewis met Detective Blair, were:
Her report to a male on the other end of a
phone call that "'[w]e're in.'"
Her statement to Blair that "'I don't fuck.
I'll jerk you off.'"
Her statement to Lewis, "'Give me the money,
give me the money. I'll run it downstairs.'"
The district court admitted the first six statements on
the basis that they were non-hearsay directions whose truth or
falsity was immaterial. It allowed the final statement into
evidence for the limited purpose of showing P's state of mind. We
briefly address the group of six before considering the court's
treatment of the final statement.
1. The Six "Non-Hearsay" Statements
The government acknowledges that certain of the
statements admitted by the district court as non-hearsay probably
should not be classified as instructions or requests that
-17-
categorically fall outside the hearsay rule. It nonetheless argues
that such statements were properly admitted as non-hearsay because
they constitute "verbal acts" or "verbal parts of acts" that
evidenced the prostitution transactions. See, e.g., United States
v. DeCologero, 530 F.3d 36, 59 (1st Cir. 2008); United States v.
Murphy, 193 F.3d 1, 5 (1st Cir. 1999); 5 Jack B. Weinstein &
Margaret A. Berger, Weinstein's Federal Evidence § 801.11[3]-[4],
at 801-818-21 (Joseph M. McLaughlin, ed., 2d ed. 2009).9
We find it unnecessary to closely examine the propriety
of allowing the six statements into evidence because we are
persuaded that any error in their admission was harmless.10 See
United States v. Benitez-Avila, 570 F.3d 364, 372 (1st Cir. 2009)
("Improper admission of testimony is harmless if it is highly
probable that the error did not influence the verdict.") (citation
and internal quotation marks omitted). Although all six of the
statements provided telling evidence about Evelyn's business, and
the statements made by C and P in the hotel rooms confirmed that
9
"Verbal acts" include statements whose utterance "gives rise
to legal consequences," such as the words used by contracting
parties in reaching an agreement or by individuals charged with
making a threat, bribe or misrepresentation. 5 Weinstein's Federal
Evidence § 801.11[3], at 801-18-20. The "verbal parts of actions"
doctrine establishes that "utterances that help to clarify or
define ambiguous conduct are not hearsay." Id. at § 801.11[4], at
801-21.
10
Diaz concedes that he failed to object to the two statements
made in phone calls with Cherubino. Admission of those statements
would in any event be subject only to plain error review.
-18-
minors employed by her were engaging in prostitution, none of the
statements implicated appellant Diaz in Evelyn's activities.11
Moreover, Diaz does not dispute that Evelyn was involved in
prostitution with her younger sisters and other minors, and there
was substantial evidence about the sting operations, other than the
challenged statements, that would have led the jury to find that
prostitution was occurring on those occasions.
Nor do we find merit in Diaz's contention that the
sexually graphic nature of the statements could have confused or
misled the jurors, or provoked their disgust with him, thereby
causing undue prejudice. As an initial matter, we note that Diaz
never argued to the district court that the probative value of the
statements was substantially outweighed by "the danger of unfair
prejudice, confusion of the issues, or misleading the jury," Fed.
R. Evid. 403. We therefore would reverse the district court's
ruling only for plain error – a standard that certainly was not met
here. The jury heard other far more pertinent, explicit testimony
linking Diaz to the prostitution scheme and Evelyn's exploitation
of her sisters, including his admission to Agent Harty that P was
among the girls he had driven to calls. We thus see no meaningful
possibility that the distasteful nature of the statements
11
The only one of the six suggestive of Diaz's complicity
was P's statement "[w]e're in" because Blair could hear that she
was reporting that information to a male. Even within that
context, however, the statement did not point to Diaz.
-19-
contributed to the jurors' finding that Diaz was a knowing and
willing participant in Evelyn's business.
2. "I'll run it downstairs"
Diaz also contends that P's request for the money and her
assertion that she would bring it downstairs was improperly
admitted under a sub-category of the state-of-mind exception to the
hearsay rule known as the Hillmon doctrine. See Fed. R. Evid.
803(3) (describing the state-of-mind exception); Mut. Life Ins. Co.
v. Hillmon, 145 U.S. 285 (1892); Minh Tu v. Mut. Life Ins. Co., 136
F.3d 77, 81 (1st Cir. 1998).12 That doctrine allows admission of
a hearsay statement of intent for the purpose of showing that the
declarant later acted in accordance with his or her expressed
intention, see Minh Tu, 136 F.3d at 81, and some courts also have
allowed such evidence to prove the actions of a third party, see 2
George E. Dix, et al., McCormick on Evidence § 275, at 275-76
(Kenneth S. Broun, ed., 6th ed. 2006).
We need not delve into the intricacies of the Hillmon
doctrine here. Although the court raised the doctrine during the
12
Rule 803 lists various exceptions to the hearsay rule,
including subsection (3) as follows:
Then existing mental, emotional, or physical condition.
A statement of the declarant's then existing state of
mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory
or belief to prove the fact remembered or believed unless
it relates to the execution, revocation, identification,
or terms of declarant's will.
-20-
final pretrial conference, it gave only a standard state-of-mind
instruction when it ruled during trial that P's statement was
admissible.13 Moreover, defense counsel objected to admission of
the statement during the pretrial colloquy only on the ground that
P's intent was not relevant and offered no additional explanations
for the objection at trial.14 Any other contention regarding the
statement's admissibility is therefore subject to plain error
review. See United States v. Dowdell, No. 08-1855, slip op. at 35
(1st Cir. Feb. 12, 2010).
13
The court instructed the jury as follows:
Now, at this point, "I'll run it downstairs" I'm
admitting only for what was in the state of mind of that
younger woman when she said that, what was in her mind at
that point, with that limiting instruction in mind.
14
Before Detective Blair took the stand, the court had advised
counsel that it would "give a limiting instruction as to [P's]
state of mind." The following exchange then took place:
DEFENSE COUNSEL: What is the limiting instruction the
Court is planning to give? I do object to it, and I want
the record to reflect clearly that that should not be
admissible against Mr. Diaz.
COURT: Yes, your objection is clear, and you should
probably object again just to make sure it's clear for
the record. But I'll give a limiting instruction:
"You're only to consider it as to what her intent is and
her plan was."
DEFENSE COUNSEL: I will object.
During Blair's testimony about his conversation with the two girls,
counsel objected repeatedly to "this entire line of questioning"
and asked if the attorneys could "come up just so I can make sure
that the record is clear about my objection on this." The court
denied the request, stating "No. You've made it." After Blair
testified to the "I'll run it downstairs" statement, the court gave
the instruction described in footnote 13.
-21-
The Hillmon claim and appellant's other contentions would
be unavailing even under a less onerous standard,15 however, because
the statement's admission, if error at all, was harmless. P's
intention to bring the money downstairs shows that she believed
someone would be there to collect it from her, but her statement
does not explicitly identify appellant as the expected recipient.
Diaz argues that the statement was nonetheless prejudicial because
it included an implied assertion that he was the individual to whom
P expected to give the money. Even if such an implied assertion
were subject to an appropriate hearsay objection (an issue we do
not decide), the jury's finding of guilt would not be compromised.
Diaz's willing participation in the Boston transaction, and thus
the conspiracy, was more directly shown through other evidence –
particularly that he had driven P and Lewis to the hotel, stayed in
the area after the drop-off, and gave an odd reason for remaining.
In addition, the government presented evidence that appellant had
admitted knowingly driving females, including P, to prostitution
calls. P's statement added only marginally to this evidence, and
we have no doubt that the jury would have reached the same outcome
without it.
B. Evelyn's Statements
15
Diaz, inter alia, reiterates his claim that the statement
should have been excluded as irrelevant.
-22-
The district court allowed the introduction of two
statements that Evelyn made, as recounted by Detective Robert
Ahern, after C summoned her to the Cambridge hotel room. Ahern
testified that, when Evelyn first entered the room, she "looked at
C--- and just told her to shut up." He also testified that Evelyn
stated that "C was her sister, that she was eighteen years old,
that she drove her sister around to give massages, but that was
it."
The court admitted the statements over defendant's
objection after the government argued that they were made in
furtherance of the conspiracy and were thus admissible under
Federal Rule of Evidence 801(d)(2)(E), which provides an exception
to the hearsay rule for co-conspirator statements made during and
in furtherance of a conspiracy. On appeal, Diaz reasserts his
contention that the statements were not admissible on that basis.
Although he acknowledges that they were made during the conspiracy,
he argues that they were not made in furtherance of the
conspiracy's objective – the sexual trafficking of minors – because
the arrests of C and Evelyn already had foiled that objective.
Diaz claims that the statements were made "solely for the purpose
of concealing the thwarted illegal agreement," and were therefore
inadmissible. See Grunewald v. United States, 353 U.S. 391, 401-03
(1957); United States v. Serrano, 870 F.2d 1, 8-9 (1st Cir. 1989).
-23-
The government argues that Diaz failed to preserve this
claim because he did not ask the district court to make a
Petrozziello determination, see United States v. Petrozziello, 548
F.2d 20 (1st Cir. 1977), in which the court rules on whether it is
more likely than not that the declarant and the defendant were
members of a conspiracy and whether the challenged statement was
in furtherance of that conspiracy. See Colón-Díaz, 521 F.3d at 36.
Without such a request, and an objection to the court's ruling,
review is only for plain error. Id.; see also United States v.
Avilés-Colón, 536 F.3d 1, 13-14 (1st Cir. 2008) (noting that, "to
properly preserve an objection to the admission of evidence under
the co-conspirator hearsay exception, a defendant must ordinarily
object both when the hearsay statements are provisionally admitted
and again at the close of all the evidence") (citation and internal
quotation marks omitted).
Diaz cannot show error, let alone plain error. He admits
that the statements were made within the dates of the conspiracy
charged in the indictment. The evidence allowed the district court
to conclude that the conspiratorial conduct – involving minors in
prostitution activity – did not end with the arrests in Cambridge.
Indeed, Diaz testified that he transported Lewis and P to the
Boston hotel, at Evelyn's request, a month later. The district
court could properly find that Evelyn's statement directing C to
stop talking, as well as her statements about C's age and the
-24-
services she was providing, were intended to prevent the law
enforcement officers from putting her out of business – and thus to
allow the conspiracy to continue operating. See, e.g., United
States v. Rodriguez, 525 F.3d 85, 101 (1st Cir. 2008) (holding
that "[a] statement is in furtherance of the conspiracy if it tends
to advance the objects of the conspiracy as opposed to thwarting
its purpose") (citations and internal quotation marks omitted);
United States v. Fahey, 769 F.2d 829, 839 (1st Cir. 1985) (holding
that a statement "fabricated to convince the [FBI] agent that the
project should be allowed to continue . . . [is] made to further
the object of the conspiracy").
Nor do we find merit in Diaz's assertion, raised for the
first time on appeal, that the statements should have been excluded
because they were unfairly prejudicial. Evelyn's attempts to
silence her sister and mislead the police officers were hardly
shocking in the context of a case centered on the alleged sexual
trafficking of minors. Diaz was not present when the statements
were made, and the jurors would have no reason to associate him
with the comments except insofar as other evidence showed that he
was complicit in Evelyn's prostitution activities. Admission of
the statements was not error.
Affirmed.
-25-
Case Information
- Court
- 1st Cir.
- Decision Date
- March 3, 2010
- Status
- Precedential