United States v. Padilla-Galarza , 886 F.3d 1 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-1035
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE PADILLA-GALARZA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
Lenore Glaser, with whom Law Office of Lenore Glaser was on
brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.
March 23, 2018
BARRON, Circuit Judge. Jose Padilla-Galarza appeals his
convictions for possession of a controlled substance with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1), and for being
a prohibited person in possession of ammunition, in violation of
18 U.S.C. § 922(g)(1). He contends that both convictions must be
reversed on the ground that the evidence of his knowing possession
of the contraband was insufficient. He argues in the alternative
that the convictions must at least be vacated due to various
alleged errors in the proceedings below -- principally that he was
"forced" to represent himself pro se because, in his view, the
District Court did not grant a sufficiently long continuance to
enable his preferred court-appointed attorney to prepare for trial
as full counsel. He also challenges two aspects of his sentence:
a condition of his supervised release that he be evaluated for
participation in a mental health treatment program and a child
pornography forfeiture order. We affirm his convictions and
sentence, subject to a remand for the limited purpose of striking
the child pornography forfeiture order.
I.
On January 9, 2015, federal law enforcement agents
executed a search warrant at a house in Toa Baja, Puerto Rico,
which the government alleges was Padilla's residence. Padilla,
together with two siblings who lived in the continental United
States, had inherited the house from their deceased parents.
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During the search, the agents found ammunition and 1,293.10 grams
of marijuana. A grand jury thereafter indicted Padilla, who has
a prior felony conviction, with one count of being a prohibited
person in possession of ammunition, in violation of 18 U.S.C.
§ 922(g)(1), and one count of possession of a controlled substance
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
In pre-trial proceedings, two court-appointed attorneys
represented Padilla. However, on August 4, 2015 -- one week before
trial was scheduled to begin on August 11 -- Padilla moved to
dismiss both attorneys.1 After a hearing on that motion on August
5, the District Court denied it. But, because Padilla indicated
in his motion and at the hearing that he would be forced to
represent himself pro se if his two attorneys were not dismissed,
the District Court held another hearing on August 7 to ensure that
any waiver of Padilla's constitutional right to counsel would be
knowing, intelligent, and voluntary. At this second hearing, the
District Court offered to appoint a different attorney, whom
Padilla preferred, as either full counsel or standby counsel, and
the District Court ordered a fifteen-day continuance to enable the
attorney to prepare. Apparently because he thought a continuance
1 At an earlier pre-trial hearing in July, Padilla had
indicated his dissatisfaction with one of his attorneys because
she did not "see eye to eye in case strategy" with him. But the
District Court found no grounds for dismissing her.
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of that length would not give that attorney sufficient time to
prepare for trial as full counsel, Padilla decided to proceed pro
se with the assistance of that attorney as standby counsel.
Padilla was tried on August 26 and 27 of 2015. At the
close of the government's evidence, Padilla moved for acquittal on
both counts based on the insufficiency of the evidence against
him. Padilla's standby counsel presented oral argument for the
motion, which the District Court denied. Thereafter, Padilla did
not testify or otherwise present evidence on his behalf. The jury
then returned a guilty verdict on both counts. Afterwards, Padilla
renewed his motion for acquittal, but the District Court denied
it.
The District Court then sentenced Padilla to forty-six
months of imprisonment and three years of supervised release. The
District Court specified that, among the conditions of his
supervised release, Padilla must "participate in an approved
mental health treatment program for evaluation and/or treatment
services determination." The District Court's written judgment
also stated that Padilla must forfeit "[a]ny and all materials or
property used or intended to be used in the possession, receipt,
distribution or transportation of child pornography, pursuant to
Title 18, USC Section 2253."
Padilla then filed this appeal. This Court appointed
counsel to represent him in these proceedings.
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II.
Padilla first contends that his convictions must be
reversed because the government's evidence was insufficient to
convict him of either possession of a controlled substance with
intent to distribute under § 841(a)(1) or being a prohibited person
in possession of ammunition under § 922(g)(1). Because Padilla
preserved this argument in his motion for acquittal, we review his
challenge de novo, "viewing the evidence in the light most
favorable to the government and taking all inferences in its
favor." United States v. Piesak, 521 F.3d 41, 44 (1st Cir. 2008).
Padilla's challenge pertains solely to the knowledge
requirement for both crimes. To sustain a conviction under either
statute, the government must prove, among other things, that the
defendant knowingly possessed the contraband. United States v.
Guzmán-Montañez, 756 F.3d 1, 8 (1st Cir. 2014) (§ 922(g)(1));
United States v. García-Carrasquillo, 483 F.3d 124, 130 (1st Cir.
2007) (§ 841(a)(1)). Padilla acknowledges that marijuana and
ammunition were found inside a bedroom in the house, but he
contends that, notwithstanding this fact, the government failed to
prove beyond a reasonable doubt that he knowingly possessed the
ammunition and the marijuana.2
2 It is also undisputed that additional ammunition was found
elsewhere in the house. But, because we conclude that the evidence
of Padilla's knowing possession of the ammunition in the bedroom
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Significantly, for the purposes of both statutes under
which Padilla was convicted, knowing possession of the contraband
may be inferred from evidence of actual possession (meaning
"immediate, hands-on physical possession") or constructive
possession. Guzmán-Montañez, 756 F.3d at 8 (§ 922(g)(1)); accord
García-Carrasquillo, 483 F.3d at 130 (§ 841(a)(1)). And, as
pertinent here, "[i]n order to show constructive possession, the
government must prove that the defendant 'had dominion and control
over the area where the contraband was found.'" United States v.
Wight, 968 F.2d 1393, 1397 (1st Cir. 1992) (quoting United States
v. Barnes, 890 F.2d 545, 549 (1st Cir. 1989)) (discussing
constructive possession in the context of both drug offenses and
§ 922(g)(1)). Thus, the record need show only that the evidence
was sufficient to permit a reasonable jury to find beyond a
reasonable doubt that Padilla exercised dominion and control "over
the area" in which the contraband was found, as a jury may infer
from such a finding of constructive possession that he knowingly
possessed the contraband if circumstances would make it reasonable
for a jury to do so. Id.
The evidence in this case more than sufficed to permit
a jury to reasonably find as much. To begin with, the jury learned
was sufficient to convict him under § 922(g)(1), we need not
address the evidence of the additional ammunition.
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that Padilla had admitted in an interview with federal agents that
he was an owner of the house in which the ammunition and marijuana
were found, that he had made payments on the mortgage for the
house, and that he had installed four surveillance cameras at the
house in order to deter break-ins and vandalism. Moreover, a
federal agent testified that she conducted drive-by surveillance
of the house ten days before the search of the house, and that
Padilla was standing outside the house as she drove by it.
The jury further learned that Padilla admitted in the
interview with federal agents that he frequented the house during
the daytime and that he sometimes slept at the house overnight.
In addition, the government's evidence sufficed to show that the
bedroom in which the ammunition and the marijuana were found was
in a more organized and clean condition than the rest of the house,
from which a jury could have reasonably inferred that Padilla slept
in that bedroom when he stayed overnight at the house. See United
States v. Matthews, 498 F.3d 25, 31 (1st Cir. 2007) (stating that
a jury is "entitled to rely on plausible inferences" from
circumstantial evidence). And, as Padilla concedes, the
contraband was found in that bedroom together with personal items
that indisputably belonged to Padilla, including: photo
identification cards; receipts in his name from the previous year;
old correspondence addressed to him; and mannequins, decorations,
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and toy guns that Padilla admitted were his for the purpose of
making movies.
In the face of this evidence, Padilla nevertheless
contends that the evidence was insufficient to prove that he
knowingly possessed the contraband. He points out that there was
no evidence of his fingerprints on the contraband and that the
house was "unkempt, disorganized and full of items." But neither
of those facts suffices to show that the jury was compelled to
find in his favor regarding whether he knew the contraband was in
the bedroom, given the government's ample evidence of his dominion
and control over that area. In particular, Padilla acknowledges
that the evidence showed that the bedroom was relatively "more
organized" than the rest of the house, and that the contraband was
found in that bedroom "with items belonging to [Padilla]." A jury
could reasonably infer from those facts that Padilla exercised
dominion and control over the area where the contraband was found.
See United States v. Smith, 680 F.2d 255, 259 (1st Cir. 1982)
("[I]f the evidence can be construed in various reasonable
alternatives, the jury is entitled to freely choose from among
them."). And the jury was then entitled to infer knowledge of the
contraband from that evidence of constructive possession, given
that such an inference was reasonable under the circumstances,
even if there was no evidence of actual possession, such as the
type of fingerprint evidence that Padilla demands.
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Padilla also contends that the evidence at trial was too
slight because it did not indicate when he inherited his ownership
share in the house, when he began "frequenting" the house, or when
he stored his personal items in the bedroom inside the house. But,
there is no dispute that those events occurred prior to when the
contraband was found. And given, for example, the relatively
recent dates of the receipts, the comparatively organized and clean
condition of the bedroom, and the testimony that Padilla was seen
outside the house ten days before the search, a jury could have
reasonably found that his dominion and control over the area where
the contraband was found continued up to the time of the search.
We therefore conclude that the government's evidence
sufficed to prove that Padilla constructively possessed the
ammunition and the marijuana found in the bedroom of the house,
from which the jury was entitled to infer that Padilla knowingly
possessed the contraband, as that inference was reasonable in these
circumstances. We thus affirm the denial of his motion for
acquittal.
III.
Padilla next contends in the alternative that, even if
the evidence against him was sufficient, both his convictions must
be vacated due to various alleged errors in the proceedings below.
We disagree.
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A.
Padilla's first argument on this score is that he was
"forced" into representing himself pro se in violation of his Sixth
Amendment right to counsel because, in his view, he was not given
a viable alternative to proceed with effective counsel. Before
addressing the merits of this argument, some additional background
is needed for context.
As explained above, the trial was originally set to begin
on August 11, 2015. One week before then, Padilla moved for new
counsel on the ground that he did not trust his two court-appointed
attorneys or agree with their case strategy. At a subsequent
hearing on August 7, 2015, the District Court offered Padilla a
choice to proceed with a different court-appointed attorney whom
Padilla preferred, Carlos Vázquez, or, on Padilla's own
suggestion, to represent himself pro se with Vázquez's assistance
as standby counsel. In either case, the District Court said it
would grant Vázquez only twenty days to prepare, which ultimately
amounted to a fifteen-day continuance.3 The District Court asked
Padilla which option he preferred, and Padilla responded that he
preferred to represent himself with Vázquez as standby counsel.
3The fifteen-day continuance of the trial actually meant that
Vázquez was ultimately given nineteen, rather than twenty, days to
prepare. Because neither party raises this point, it has no
bearing on our analysis.
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The District Court then proceeded with a lengthy colloquy to ensure
both that Padilla understood his constitutional right to
representation and that he was voluntarily waiving it.
Padilla's decision to waive his constitutional right to
counsel must have been made "knowingly, voluntarily and
intelligently." United States v. Benefield, 942 F.2d 60, 65 (1st
Cir. 1991) (citing United States v. Campbell, 874 F.2d 838, 845-
46 (1st Cir. 1989)). Padilla contends, however, that he was not
actually given an option to be represented by effective counsel
because a longer continuance than the one the District Court
granted was needed in order for Vázquez to have represented him
effectively as full -- rather than merely standby -- counsel.
Padilla thus contends that, absent a longer continuance, he was
forced to make a Hobson's choice, by which his only real option
was to proceed pro se, as the only other counsel available to him,
besides Vázquez, were the two attorneys who he contends could not
represent him effectively. Thus, in Padilla's view, his waiver of
his constitutional right to representation was not voluntary.
However, a premise of Padilla's challenge to the
effectiveness of his waiver -- namely, that the continuance was
too brief to permit Vázquez to provide constitutionally adequate
representation as full counsel and thus that Padilla was not
actually offered an option of choosing an effective counsel -- is
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not supported by the record.4 In determining how long to continue
the trial, the District Court reasoned that it was not a "very
complicated" case and that Vázquez would have the benefit of the
preparation done by Padilla's previous two attorneys and their two
investigators. At the hearing, Vázquez did initially tell the
District Court, with respect to the time that he needed to prepare
as full counsel, that he was "thinking in terms of a month to two
months." However, when the District Court told Vázquez that one
to two months was not an option and that he would have only twenty
days if Padilla elected to use him as full counsel, Vázquez said
"okay."
On appeal, Padilla does not dispute that the District
Court had discretion to determine how long of a continuance to
grant, even if that decision potentially implicated the
constitutional right to counsel. See United States v. Zimny, 873
F.3d 38, 52 & n.17 (1st Cir. 2017). Moreover, it is clear that,
in order to establish that not granting Padilla a longer
continuance erroneously deprived him of his right to counsel,
Padilla must show "that the denial amounts to 'an unreasoning and
4Because we conclude that Padilla had a real option to be
represented effectively by Vázquez as full counsel, we need not
address his other implicit premise that his original two attorneys
could not have represented him effectively. We note, too, that
Padilla has not identified any other ground for concluding that
his waiver of his right to counsel was ineffective.
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arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay.'" Id. at 53 (quoting United States
v. Maldonado, 708 F.3d 38, 42 (1st Cir. 2013)).5 Padilla offers
no persuasive argument, however, as to why, on this record, the
District Court was not entitled to determine that no more than
twenty days was needed for Vázquez to prepare as full counsel.
In this regard, we see no error in the District Court's
determination that this was not a "very complicated" case. After
all, the only genuinely disputed issue at the trial was whether
Padilla actually or constructively possessed the contraband found
in the house, and there were relatively few witnesses and exhibits.
See United States v. Rodríguez-Durán, 507 F.3d 749, 767 (1st Cir.
2007) (finding no abuse of discretion in denying continuance in
part because "the factual circumstances were not particularly
complicated" where charges for drug possession with intent to
distribute "stemmed from a single episode with a fixed cast of
participants").6
5 Because Padilla has not made this showing, we need not
decide whether Padilla would also have to show prejudice in this
context, a question we recently reserved in Zimny, 873 F.3d at 52-
53.
6 The District Court also pointed out that Vázquez would
benefit from the preparation already done by Padilla's two previous
attorneys and their two investigators. See United States v.
Hurley, 63 F.3d 1, 16 (1st Cir. 1995) (reasoning that a denial of
a continuance was not an abuse of discretion in part because
counsel benefitted from the work of co-defendants' counsel who had
longer time to prepare). And, although Padilla states that he
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Consistent with this conclusion, we observe that Vázquez
himself responded by saying "okay" when informed of the continuance
that would be allowed, without indicating he would need more time
in order to provide effective representation on that schedule.
Cf. Zimny, 873 F.3d at 55 (noting that a request for a continuance
should be made "in clear, unmistakable terms").7 And we observe
as well that Padilla does not point to any particular reason why
longer than twenty days was in fact needed, such as by identifying
further investigation that the defense would have needed more time
to complete.8 See United States v. Williams, 630 F.3d 44, 48 (1st
Cir. 2010) (finding no abuse of discretion in denying continuance,
which had been requested on the basis of an assertion that the
record was voluminous, given in part that "no specific explanation
ha[d] been provided as to why those particular materials justified
additional time").
distrusted those attorneys and disagreed with their case strategy,
he does not contend that the work they and their investigators
performed on his case could not permissibly be considered by the
District Court in determining the duration of the continuance.
7 We note that, by way of contrast, Vázquez felt comfortable
telling the District Court "no" when the District Court asked him
if he could be ready as full counsel within two days or one week
from when trial was originally scheduled to begin.
8 The only investigative work that Padilla references on
appeal was tracking down his father's firearms licenses "that were
critical to his defense." But, as Padilla acknowledges, those
licenses were ultimately admitted into evidence despite the brief
continuance.
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For these reasons, we conclude that it was within the
District Court's discretion to decide not to grant a longer
continuance. We thus disagree with Padilla that his decision to
instead proceed pro se with standby counsel was a Hobson's choice.
In consequence, a premise for Padilla's challenge to the
effectiveness of his waiver of his right to counsel -- that he had
no option of choosing an effective counsel because the continuance
was too brief -- is mistaken. We thus see no basis for finding
merit in Padilla's contention that his waiver of his right to
counsel was ineffective.
B.
Padilla next contends that his convictions must be
vacated on the ground that the District Court erred by not advising
him that he could testify at his trial in narrative form and thus
without anyone asking him questions. And he contends that he was
thereby prejudiced, because he was not aware that he could have
testified notwithstanding that he was proceeding pro se.
Padilla asserts that the standard of review is de novo,
but the government suggests that our review is for only plain error
because Padilla did not raise below his claim that the District
Court should have advised him that he could testify in narrative
form. However, because this type of claim "lies in . . . ignorance
of the law," at least one other circuit has held that whether it
was error not to advise a defendant of the option to testify in
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narrative form is reviewed de novo notwithstanding that the
defendant did not raise a specific objection below. See United
States v. Ly, 646 F.3d 1307, 1312 & n.5 (11th Cir. 2011). For
present purposes, we may assume that our review is de novo, because
even under that more favorable standard of review, Padilla's
challenge fails.
Padilla asserts in his appellate brief that, had he been
advised by the District Court that he could testify in narrative
form, "[h]is testimony would have filled in some of the areas that
were left out by the government's witnesses." However, Padilla
does not actually tell us what his testimony would have been, so
we have no basis to conclude that his testimony would have had any
effect on the verdict. But we need not decide whether the alleged
constitutional error here was harmless or whether this type of
error is even subject to harmless error review (a question neither
party briefed), see Weaver v. Massachusetts, 137 S. Ct. 1899, 1907-
08 (2017), because we see no error.
A district court generally has no duty to apprise a
criminal defendant of the right to testify or to secure an explicit
waiver of that right, as the responsibility to advise a defendant
of the right to testify "rests with his lawyer." Rosenthal v.
O'Brien, 713 F.3d 676, 687 (1st Cir. 2013) (citing Siciliano v.
Vose, 834 F.2d 29, 30 (1st Cir. 1987)). Padilla proposes, however,
that when a defendant proceeds without a lawyer, it is "incumbent
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upon the Court to fulfill this duty," at least where it becomes
manifest that the pro se defendant does not understand that he can
testify without anyone asking him questions.
But this argument fails because Padilla did proceed with
standby counsel -- whom the District Court described to Padilla as
his resource on federal law and procedure -- who could have
explained to Padilla that he could testify in narrative form.
Indeed, "the wisdom of the trial judge" in appointing standby
counsel lies in the fact that the pro se defendant will therefore
have counsel available "to perform all the services a trained
advocate would perform ordinarily," including "examination . . .
of witnesses." Mayberry v. Pennsylvania, 400 U.S. 455, 467-68
(1971) (Burger, C.J., concurring). Thus, we fail to see how it
was manifest that Padilla would have needed the District Court to
apprise him of his right to testify in narrative form.
Padilla does point to an Eleventh Circuit decision, Ly,
646 F.3d 1307, which held that the district court erred by not
correcting a pro se defendant's "obvious" misunderstanding of his
option to testify in narrative form. Id. at 1317. But that case
is quite different from this one.
In Ly, during a colloquy that the district court had
initiated regarding the pro se defendant's decision not to testify,
the defendant repeatedly told the district court that the reason
he was not testifying was that "I don't have counsel to ask me
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questions." Id. at 1311-12. Padilla has not persuasively
identified any statement, let alone one from a colloquy over his
right to testify, that would have put the District Court on similar
notice that he was not aware that he could testify in narrative
form. Padilla certainly never told the District Court that the
reason he was not testifying was that he did not have counsel to
ask him questions. And, of course, he did have standby counsel
who could have asked him questions. We thus conclude that the
District Court did not err on this score.
C.
Padilla also contends that his convictions should be
vacated in light of several statements made by the prosecutor at
trial that Padilla alleges were improper. Padilla did not object
to any of the statements that he now challenges on appeal. Nor
did Padilla's standby counsel object to the statements on Padilla's
behalf, even though the standby counsel did make other objections
during the trial. Accordingly, as Padilla concedes, our review is
only for plain error.
To show plain error, Padilla must show: "(1) that an
error occurred (2) which was clear or obvious and which not only
(3) affected the defendant’s substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings." United States v. Madsen, 809 F.3d 712,
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717 (1st Cir. 2016) (quoting United States v. Duarte, 246 F.3d 56,
60 (1st Cir. 2001)). Padilla has not made such a showing.
1.
To begin with, Padilla points to the prosecutor's
references during opening arguments to the house where the
contraband was found as Padilla's "residence."9 Padilla contends
that these references improperly prejudiced the jury because
whether the house was in fact his residence was a disputed issue.
"Ideally, to preclude any argument of error, the prosecutor might
have used the locution that 'the evidence will show' that" the
house was Padilla's residence. United States v. Capelton, 350
F.3d 231, 237-38 (1st Cir. 2003). But, even assuming a clear or
obvious error, Padilla fails to show how the references affected
his substantial rights by prejudicing the jury and resulted in a
miscarriage of justice.
In fact, we have previously held that it was not a
manifest abuse of discretion to deny a new trial -- a lower
standard than plain error -- in a case in which the prosecutor
repeatedly referred to each defendant who was charged with drug
9
Padilla directs our attention to nineteen references during
the trial to the house as Padilla's "residence." However, the
majority of the statements that he identifies were in fact made by
government witnesses, not the prosecutor. The only references by
the prosecutor to the house as Padilla's "residence" that Padilla
identifies were made during the opening arguments.
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offenses as a "drug dealer" in the opening arguments. Id. at 238.
We reasoned that the references did not prejudice the jury because
(1) the district court had cautioned the jury before the opening
arguments that the counsel's words were not evidence and (2) the
government later introduced "substantial" evidence that the
defendants were drug dealers. Id.
Likewise, here, the District Court instructed the jury
prior to the government's opening argument that what the prosecutor
was going to say was not evidence. And the government then
introduced substantial evidence from which a jury could reasonably
infer that the house was Padilla's residence, including his
admissions during an interview with federal agents that he owned
and frequented the house, the testimony that he was surveilled
outside the house, and the evidence that his personal items were
found inside the house. Nor does Padilla develop any argument
otherwise.
2.
Moving on to the closing arguments, Padilla points to
certain statements that the prosecutor made during the rebuttal
portion with respect to Padilla's defense theory, presented during
his own closing argument, that the ammunition found in the house
had belonged to his father and had remained in the house without
Padilla's knowledge since his father's death. In this regard,
Padilla contends that it was improper for the prosecutor to point
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out that some of the caliber sizes of the firearms listed in his
father's firearm licenses "did not match" the caliber sizes of the
ammunition found in the house, given that the government did not
introduce expert testimony on this point.
The problem with this contention is that evidence of the
caliber sizes of the father's licensed firearms and the caliber
sizes of the ammunition in the house were in the record. Thus, we
do not see how it was improper -- let alone clearly improper -- for
the prosecutor to comment on an inference that the jury might draw
from the fact that the caliber sizes were different. See United
States v. Smith, 982 F.2d 681, 683 (1st Cir. 1993) (explaining
that "inferences the jury might draw from the evidence" are "a
proper subject of comment by the prosecutor" in closing arguments).
Padilla also challenges the prosecutor's reference
during the rebuttal to the fact that no firearms were found inside
the house, from which the prosecutor inferred that any firearms
belonging to the father had been removed. The prosecutor then
suggested to the jury that it would be implausible that any
ammunition belonging to Padilla's father would have remained in
the house after the father's firearms were removed.
Padilla asserts that this suggestion was improper.
However, "a prosecutor has a right to comment on the plausibility
of the defense theory." United States v. Henderson, 320 F.3d 92,
106 (1st Cir. 2003) (citing United States v. Garcia, 818 F.2d 136,
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143 (1st Cir. 1987)). And Padilla makes no argument as to why the
prosecutor's remark clearly exceeded the scope of that right.
3.
Finally, Padilla challenges the following statement made
by the prosecutor during the rebuttal portion of closing arguments:
This case is about an ex PRPD officer,
convicted felon, person that has law
enforcement background. This is not a case
about a grandmother, naive, that had never
seen any type of narcotics, or was never
confronted and had no participation in
narcotics. This is not a case about an old
grandfather, 85 years old, who had no law
enforcement background, had never seen a gun
before, had never seen a bullet before, and
would not be able to identify them.
Padilla contends that the fact that he was a former
police officer did not bear on his knowledge about narcotics and
that the implied reference to his "participation in narcotics"
improperly "insinuated illegal usage or activity." He also
contends that the reference to him as "a convicted felon" "invited
the jury to focus on his bad character rather than on the
evidence."
The government responds that the prosecutor properly
invoked Padilla's former profession in order to rebut Padilla's
theory that he was ignorant of the nature of the contraband found
in the house. The government also counters that the reference to
Padilla's status as a convicted felon -- which is an element of
the § 922(g)(1) charge -- was proper because it rebutted Padilla's
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claim to the jury in his closing argument that the § 922(g)(1)
charge against him "could happen to anybody" who inherits a house
from someone with a weapons permit.
Even if Padilla is right that these comments were
improper, he has failed to make any developed argument as to how
the prosecutor's references to him as a former police officer and
convicted felon affected his substantial rights and resulted in a
miscarriage of justice. And, in any event, as we explained in
Part II, while Padilla challenges only the sufficiency of the
government's evidence with respect to his knowledge that the
contraband was in the bedroom, the government offered a wealth of
evidence on that score. Padilla has thus failed to show how these
references made it reasonably probable that, had they not been
made, the outcome at trial would have been different. See United
States v. Latorre-Cacho, 874 F.3d 299, 303 (1st Cir. 2017) ("[T]he
third prong of the plain error standard . . . requires the
defendant to show . . . that it is reasonably probable that the
clear and obvious error affected the result of the proceedings.").
Accordingly he has failed to satisfy the plain error standard that
applies here.
IV.
Finally, Padilla challenges two aspects of his sentence.
We reject his first challenge but, in accord with the government's
own view, grant relief with respect to his second challenge.
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A.
To begin with, Padilla objects to a special condition of
his supervised release that he "shall participate in an approved
mental health treatment program for evaluation and/or treatment
services determination." The condition specifies that, "[i]f
deemed necessary, the treatment will be arranged by the [probation]
officer in consultation with the treatment provider; the modality,
duration and intensity o[f] treatment will be based on the risks
and needs identified." The presentence report recommended this
condition. Padilla objected to the condition at the sentencing
hearing, but the District Court concluded, in light of his
experiences interacting with Padilla over the course of the case,
that "this is a good condition for him."
"We review conditions of supervised release for abuse of
discretion." United States v. DaSilva, 844 F.3d 8, 11 (1st Cir.
2016) (quoting United States v. Del Valle-Cruz, 785 F.3d 48, 58
(1st Cir. 2015)). The District Court has "broad discretion" to
impose conditions of release provided they are "reasonably
related," as pertinent here, to the provision of rehabilitative
treatment for the defendant. United States v. Rivera-López, 736
F.3d 633, 635 (1st Cir. 2013); see also U.S. Sentencing Guidelines
Manual § 5D1.3(d)(5) (U.S. Sentencing Comm'n 2015) (release may be
conditioned on participation in a mental health program "[i]f the
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court has reason to believe that the defendant is in need of
psychological or psychiatric treatment").
Padilla contends that the District Court abused its
discretion in imposing the mental health counseling condition
because his court-ordered psychiatric evaluation did not diagnose
him with a mental illness. However, the government points out
that the psychiatric evaluation concluded that Padilla did exhibit
"features" of a particular mental illness -- a point Padilla does
not dispute. See United States v. Perazza-Mercado 553 F.3d 65, 75
(1st Cir. 2009) (noting, with respect to a court's imposition of
a condition of supervised release, that "a court's reasoning can
often be inferred after an examination of the record" (internal
quotation marks omitted)). The condition of supervised release at
issue requires only that Padilla be evaluated for treatment
services. Thus, if treatment services are not "deemed necessary,"
then under the plain terms of the condition, no treatment will be
arranged. Padilla identifies no case law indicating that a mental
health counseling condition like this one can be imposed only if
the defendant is diagnosed with a mental illness. Nor are we aware
of any such authority. Accordingly, we conclude that the District
Court did not abuse its discretion by including this condition of
supervised release.
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B.
Padilla also challenges the District Court's order of
forfeiture of "[a]ny and all materials or property used or intended
to be used in the possession, receipt, distribution or
transportation of child pornography, pursuant to Title 18, USC
Section 2253." The government agrees with Padilla that this order
of forfeiture was an error and should be excised from the written
judgment.
Forfeiture under criminal statutes like 18 U.S.C. § 2253
is "an element of the sentence imposed following conviction."
Libretti v. United States, 516 U.S. 29, 38-39 (1995) (emphasis
omitted). Accordingly, an order of criminal forfeiture must be
supported by a factual foundation in the record. See id. at 48.
Nothing in the record here, however, has any discernible connection
to child pornography. Accordingly, we agree with the parties that
this order of forfeiture should be struck from the written
judgment.
V.
We therefore remand for the limited purpose of striking
the child pornography forfeiture order, but we affirm the rest of
the District Court's judgment.
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