948 F.3d 418
1st Cir.2020Background:
- Alleged Massachusetts scheme: Veloz masterminded kidnappings of drug dealers using GPS devices attached to victims' cars to track and ransom them.
- July 23, 2012: victim Manuel Amparo escaped and alerted police; three men arrested; co-defendant Henry Maldonado began cooperating with the FBI.
- FBI investigation corroborated informant details (mailbox name, vehicles, GPS device found on victim's car) and obtained a warrant to search Veloz's residence, seizing computers and phones.
- Indictment charged conspiracy to commit kidnapping under 18 U.S.C. § 1201(c); co-defendants pleaded guilty; Veloz was tried, convicted by jury (Aug. 2017), and sentenced to life (Nov. 2017).
- On appeal Veloz raised multiple challenges: probable cause for the warrant (informant reliability), Franks hearing request (omissions/misstatements), admission of a recorded-transcript of a co-conspirator, admissibility of GPS/business records and related testimony, exclusion of defense witnesses, defendant's absence at an expert voir dire, prosecutorial remarks, a jury instruction, and denial of a Rule 33 new-trial motion.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for apartment search (CI-based affidavit) | CI provided detailed, firsthand info corroborated by surveillance and agent expertise supporting a fair probability of evidence on premises | Affidavit failed to show CI's past reliability and contained misstatements, so no probable cause | Probable cause existed under Gates totality-of-the-circumstances; corroboration and known CI supported reliability; denial of suppression affirmed |
| Franks hearing for alleged omissions / false statements in affidavit | Omissions and timing/identification details were immaterial given other corroboration; no reckless/fraudulent omission | Omitted Maldonado's history (criminal, addiction, bipolar), false ID timing, and failure to identify CI as Maldonado were material and deliberate omissions | No substantial preliminary showing of material falsehood or reckless omission; Franks hearing properly denied |
| Admission of Romero's prison statements (Confrontation Clause & Rule 804(b)(3)) | Statements were non-testimonial and admissible as statements against penal interest with corroborating circumstances | Statements were testimonial or self-serving, lacked corroboration, and were recorded in violation of a court-order constraint | Statements were non-testimonial (Davis/Bourjaily) and admissible under Rule 804(b)(3); district court did not abuse discretion and supervisory exclusion not warranted |
| GPS data and business-records testimony (U.S. Fleet Tracking) | GPS logs were contemporaneous business records; proper witnesses (Eichhorn, custodian) authenticated data | Data were prepared for litigation, witnesses unqualified, and hearsay through other-company materials | Business-records exception applied; Fleet Tracking testimony satisfied Rule 803(6); any minor errors were harmless |
| Exclusion of SA Rolands and defendant's absence at expert voir dire | Exclusion prevented cumulative/confusing testimony; voir dire on qualifications was not a critical stage requiring defendant's presence | Exclusion violated defendant's right to call witnesses and to be present at critical stages | Exclusion not an abuse of discretion (testimony would be cumulative); Veloz's absence from voir dire was not prejudicial and did not violate due process |
| Prosecutorial comments, jury instruction on recording, and Rule 33 motion (evidence tampering) | Remarks and instruction were permissible/contextual; jury heard defense attacks on evidence; no manifest injustice warranting new trial | Remarks shifted burden, court decided factual issue on recording, and evidence handling required new trial | No reversible prosecutorial misconduct given curative instructions and strong evidence; instruction about recording fact was not prejudicial; Rule 33 denial did not constitute manifest abuse |
Key Cases Cited
- Illinois v. Gates, 462 U.S. 213 (totality-of-the-circumstances test for probable cause)
- Franks v. Delaware, 438 U.S. 154 (standard for entitling defendant to a Franks hearing)
- Bourjaily v. United States, 483 U.S. 171 (informant hearsay can support probable cause when corroborated)
- Davis v. Washington, 547 U.S. 813 (distinguishing testimonial from non-testimonial statements)
- Williamson v. United States, 512 U.S. 594 (limits on statements-against-interest hearsay exception)
- United States v. Gifford, 727 F.3d 92 (factors for assessing informant-tip reliability)
- United States v. Ackies, 918 F.3d 190 (standard of review for suppression and evidentiary rulings)
- United States v. Barone, 114 F.3d 1284 (narrow focus of Rule 804(b)(3) inquiry)
- United States v. Zannino, 895 F.2d 1 (appellate waiver and harmless-error principles)
- United States v. Merlino, 592 F.3d 22 (standard for Rule 33 relief based on sufficiency/tampering concerns)