United States Court of Appeals For the First Circuit
UNITED STATES OF AMERICA,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Torruella, Selya and Thompson,
Edward J. O'Brien, with whom O'Donnell, Trossello & O'Brien was on brief, for appellant. Alex J. Grant, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
September 17, 2013
SELYA, Circuit Judge. In criminal cases, proffer
sessions are commonly used as a means of facilitating plea
negotiations. A defendant's agreement to participate in a proffer
session carries with it both potential risks and potential rewards.
To protect the proffering defendant against unfairness,
prosecutors customarily offer assurances that they will not use
what the defendant reveals at the proffer session against him
should plea negotiations fail. In this case of first impression,
the government promised the defendant that it would not use against
him any "statements made or other information" disclosed at the
The proffer session came to naught. When trial became
imminent, the government attempted to pull a rabbit out of a hat:
it advised the defendant that, notwithstanding its earlier
assurances, it planned to introduce at trial voice identification
testimony from a police officer, based on what the officer had
heard at the proffer session, linking the defendant to a highly
incriminating recorded telephone conversation. Although the court
found the government's plan "troubling," it nonetheless denied the
defendant's motion in limine and allowed the government to present
the testimony. The jury returned a guilty verdict.
On appeal, the defendant advances three claims of error,
including a renewed challenge to the introduction of the voice
identification testimony. With respect to this pivotal issue, we
conclude that the admission of the testimony transgressed the
proffer agreement and the defendant's due process rights. On the
assumption that such a transgression is subject to harmless error
review, we conclude that the proper barometer for that review
requires us to ask whether the government has shown that the error
was harmless beyond a reasonable doubt. Because the government has
not carried this heavy burden, we vacate the defendant's
The moral of this story is that, especially when dealing
with criminal defendants at proffer sessions, the government must
turn square corners. The government did not do so here.
On February 19, 2010, an agent of the Federal Bureau of
Investigation (FBI), Jeffrey Lawrence, working with other law
enforcement personnel, set in motion a controlled purchase of crack
cocaine. The leading man in the production was a cooperating
witness, Robert Williams. The agents equipped Williams with video
and audio recorders, and a Massachusetts state trooper, Thomas
Fitzgerald, searched him to ensure that he had no drugs or other
contraband on his person.
Williams then made a recorded telephone call to the
target of the sting, Anthony Hook. During this call, Hook agreed
to sell "three and a teenth" of crack cocaine1 for $500, and handed
the telephone to another individual to arrange the exchange. That
individual, a stranger to Williams, set up a meeting at the parking
lot of a package store (a retail liquor emporium) and stated that
he was wearing a black jacket. Williams replied that he would be
driving a blue Chevy Blazer.
After the call, Agent Lawrence gave Williams $500 to make
the buy. Williams then drove to the package store under the
watchful eye of agents in a surveillance van. Along the way, he
stopped for gas and spent a brief interlude unattended inside the
gas station's store.
After Williams arrived at the designated parking lot,
defendant-appellant James Melvin, wearing black clothing, entered
his vehicle. This encounter was surreptitiously videotaped.
Williams asked the defendant, "What we got right here?"
The defendant answered, "Three balls and a teenth." The videotape
shows the defendant removing an unidentifiable object from his
waistband. At trial, Williams testified that the object was crack
cocaine, which the defendant weighed on a scale and sold to him for
$500. The defendant then disembarked from the vehicle.
1 Testimony at trial indicated that the quantity mentioned referred to three "eightballs," each comprising one-eighth of an ounce of crack cocaine, plus one-sixteenth of an ounce of crack cocaine.
As Williams began to leave, he was approached by a family
friend who "slapped him five" through the open window of his
vehicle. Williams's next stop was a meeting with government
agents, where he surrendered a bag of crack cocaine, a scale, and
the recording equipment.
The defendant was not immediately arrested. For reasons
not relevant here, he later wound up in state custody. Trooper
Fitzgerald happened to be present during the defendant's booking
and recognized him as the person who had entered Williams's vehicle
on February 19 (almost two months earlier). The trooper reported
this bit of serendipity to Agent Lawrence. On April 22, 2010, the
latter showed Williams an array of nine photographs (one of which
depicted the defendant) and asked him to identify the seller of the
cocaine. Williams chose the defendant's photograph.
A federal grand jury sitting in the District of
Massachusetts subsequently indicted the defendant on a single count
of possessing cocaine with intent to distribute. See 21 U.S.C.
§ 841(a)(1). The indictment was returned on May 20, 2010. That
same day, law enforcement personnel, including Officer James Mazza,
a Springfield police officer (who had been part of the February 19
surveillance team), interviewed the defendant at a proffer session.
The proffer session was held pursuant to a written proffer
agreement drafted by the government.
The proffer session proved fruitless and the defendant
proceeded to trial. The government posited that the defendant sold
crack cocaine to Williams in the parking lot. As part of its case
in chief, the government called Officer Mazza to testify that he
had familiarized himself with the defendant's voice during the
proffer session and, through that acquired knowledge, could
identify the defendant as the unknown speaker who had participated
in the February 19 telephone call. The defense attempted to point
the finger at Williams, implying that he had acquired the crack
cocaine elsewhere and had staged matters so as to shift the blame
to the defendant.
The jury found the defendant guilty. After the
imposition of sentence, this timely appeal followed.
In this venue, the defendant advances three claims of
error. This litany includes a claim that the district court should
have suppressed the photo array identification as impermissibly
suggestive and unreliable; a claim that Williams's testimony should
have been excluded because a government agent had told him that
payment for his services depended on future convictions; and a
claim that allowing Officer Mazza's voice identification testimony
violated his due process rights.2 We address these arguments in
inverse order of difficulty.
A. The Photo Array.
We need not linger long over the defendant's challenge to
the photo array. The defendant filed a pretrial motion to suppress
this identification, arguing that only two of the nine photographs
were "close-ups" (one depicting the defendant, the other a man with
a beard and a facial scar); and that due to this peculiarity, the
array was both unreliable and impermissibly suggestive. The
district court deemed this argument unconvincing and so do we.
To withhold photo array identification evidence from a
jury, a court must be "persuaded that there was a very substantial
likelihood of irreparable misidentification." United States v.
Rivera-Rivera, 555 F.3d 277 , 282 (1st Cir. 2009) (internal
quotation marks omitted). This analysis proceeds in two steps.
First, the court must determine whether the identification
procedure was impermissibly suggestive. If it was not, the inquiry
ends. If, however, the defendant can successfully negotiate this
first step, the court must then examine the totality of the
circumstances to ascertain whether the identification was
2 The government asserts that both the second and third claims of error are procedurally defaulted because the defendant did not raise them squarely enough in the court below. Our examination of the record satisfies us that both claims are preserved.
nevertheless reliable. See United States v. DeCologero, 530 F.3d
36 , 62 (1st Cir. 2008).
Our review of a district court's bottom-line conclusions
about reliability and suggestiveness is plenary. See United States
v. Espinal-Almeida, 699 F.3d 588 , 602 (1st Cir. 2012), cert.
denied, 133 S. Ct. 1837 (2013). We review any underlying findings
of fact for clear error. See id.
The defendant's assignment of error falters at the first
step of the two-step pavane. As the district court noted, the
defendant's photograph shows him only "somewhat closer to the
camera" than others. Minor differences within the components of a
photo array are to be expected and, without more, do not render the
identification procedure impermissibly suggestive. See, e.g.,
United States v. Brennick, 405 F.3d 96 , 99-100 (1st Cir. 2005).
Here, there is no "more."
To dwell on this aspect of the case would be pointless.
Jurors should not be treated as gullible dupes, see Manson v.
Brathwaite, 432 U.S. 98 , 116 (1977), and photo array identification
evidence should be withheld from them "only in extraordinary
cases," Rivera-Rivera, 555 F.3d at 282 (internal quotation marks
omitted). The photo array here was unexceptionable, and the
district court's denial of the motion to suppress was proper.
B. The Bounty.
In an argument that reminds us that the love of money is
the root of all evil, see I Timothy 6:10, the defendant asserts
that the government's quondam financial arrangement with Williams
— dollars for convictions — so tainted his testimony as to work a
violation of the Due Process Clause, U.S. Const. amend. V. This is
a closer question, but we ultimately conclude that the prosecutor's
timely intervention and the deployment of effective safeguards
sufficed to mitigate the taint of which the defendant complains.
The relevant facts are not disputed. Williams did not
agree to serve as a government cooperator for love of country but,
rather, because the government promised to compensate him. Between
December of 2010 and March of 2011, Agent Lawrence told him on
approximately six occasions that he would be paid only when the
government had obtained three convictions through his cooperation.
When the prosecutor learned of this tawdry arrangement,
he put an end to it. On March 16, 2011, he revealed the
arrangement to defense counsel and explained that he had directed
Agent Lawrence to disabuse Williams of the notion that future
payments would be contingent upon convictions. At a meeting held
soon thereafter, Agent Lawrence, flanked by two prosecutors, told
Williams that he would be paid for his services, not for
Prior to trial, the defendant moved in limine to exclude
Williams's testimony as irrevocably corrupted by the original
bounty arrangement. The district court denied the motion, citing
the government's later disavowal and disclaimer of that
In appealing this ruling, the defendant places heavy
reliance on prior decisions of this court that contain language
condemning witness compensation contingent upon convictions.
United States v. Cresta, 825 F.2d 538 (1st Cir. 1987); United
States v. Dailey, 759 F.2d 192 (1st Cir. 1985). This language, he
insists, should have led the district court to exclude Williams's
In Dailey, we examined plea agreements in which the
government's promise to recommend leniency depended on the "value"
or "benefit" of cooperation to the government. 759 F.2d at 194-97.
We held that "established safeguards" — informing the jury of the
precise nature of the arrangement, cross-examination, and specific
instructions to weigh the cooperating witness's testimony with care
— would adequately protect the defendant's due process rights
against any potential prejudice arising from the government's
promise. Id. at 196-97, 200.
Dailey is not directly applicable to this case because we
took pains to distinguish the agreements at issue there from those
in which a "promised benefit is made contingent upon a resulting
indictment or conviction." Id. at 197. However, our decision
acknowledged in dictum that we could "think of no instance in which
the government would be justified in making a promised benefit
contingent upon the return of an indictment or a guilty verdict."
Id. at 201. We added "that benefits made contingent upon
subsequent indictments or convictions skate very close to, if
indeed they do not cross, the limits imposed by the due process
clause." Id. at 201 n.9.
Dictum in Cresta reinforced these observations. Though
not faced with an actual bounty arrangement there, we reiterated
that "we would not condone" an agreement promising such contingent
benefits. 825 F.2d at 547.
We do not retreat from what we said in Dailey and Cresta:
we continue to view the practice of conditioning a witness's
benefits upon the incidence of future indictments or convictions as
pernicious. A cooperator whose eyes are fixed on such a prize
might well be tempted to wander from the path of candor and, thus,
unduly prejudice the criminal defendant.
We add, moreover, that such bounty arrangements are
likely to boomerang against prosecutors. After all, fee
arrangements that are contingent upon the securing of indictments
or convictions detract mightily from a cooperator's credibility at
trial. We are, therefore, puzzled as to why the government would
employ such a tactic more than a quarter century after we had twice
disapproved of it.
Here, however, the story does not end with a witness
laboring under the belief that conviction — and conviction alone —
will earn him his keep. Before Williams was called to testify, the
prosecutor pulled him back from the abyss and removed the unsavory
lure of dollars for convictions. None of our prior cases address
such a situation, even in dictum.
In our view, the prosecutor's intervention, coupled with
the district court's prophylactic instructions, makes all the
difference. With the bounty taken unequivocally off the table, we
think that the question of how to proceed was within the sound
discretion of the trial court.
Here, the court decided that sunlight was a sufficient
disinfectant. The nature of the bounty arrangement and the
prosecutor's efforts to rectify the problem were fully disclosed to
the jury. Williams was subject to cross-examination on these
points as well as on his overall testimony. As a further
safeguard, the district court gave pellucid instructions that the
jury should consider the testimony of the cooperating witness "with
particular caution" and an eye toward "whether his testimony has
been affected by his interest in maintaining his relationship with
the government or by any of the benefits he has received from the
government." In the circumstances of this case, we think that this
set of safeguards was adequate to protect the defendant's due
process rights. When all is said and done, we cannot set aside a
defendant's conviction simply because we disapprove of some aspect
of the government's handling of the case. See, e.g., United States
v. Santana, 6 F.3d 1 , 9-11 (1st Cir. 1993) (discussing limits of
supervisory power). On this record, we conclude that the
prosecutor's timely and unequivocal correction of Agent Lawrence's
blunder combined with the effective safeguards that were employed
at trial sufficed to prevent a due process violation.
C. The Proffer Agreement.
The defendant's final claim of error is the most vexing.
The defendant agreed to appear at a proffer session. That session
was governed by a written agreement, drafted by the government,
which stated in pertinent part:
1. No statements made or other information provided by [the defendant] will be used by the United States Attorney directly against him, except for purposes of cross-examination and/or impeachment . . . .
2. The government may make derivative use of, or may pursue any investigative leads suggested by, any statements made or other information provided by [the defendant] in the course of the proffer.
Officer Mazza attended this proffer session on behalf of
the government and became familiar with the defendant's voice
through his attendance. When plea negotiations cratered and trial
became necessary, the government sought to have him identify the
defendant's voice on the inculpatory recording of the February 19
telephone call. The defendant moved in limine to exclude this
testimony, arguing that it was a direct use of "other information"
provided by the defendant — his voice tone and characteristics — at
the proffer session. Even though the district court acknowledged
that the government's tactic left "a bad taste," it denied the
motion. The court reasoned that the Criminal Rules protect a
defendant's statements at a proffer session but not the sound of
The district court's reasoning fails to take into account
the actual language of the proffer agreement. To this extent, its
approach was incorrect. Informal immunity agreements, such as
proffer agreements, "are shaped . . . by the language of the
contract conferring the immunity." United States v. Hogan, 862
F.2d 386 , 388 (1st Cir. 1988). The district court should have
looked, therefore, to the text of the proffer agreement. The
meaning of the proffer agreement presents a question of law, which
engenders de novo review. See, e.g., United States v. Atwood, 963
F.2d 476 , 478 (1st Cir. 1992). In performing this interpretative
task, we are guided chiefly by contract-law principles. See United
States v. McLaughlin, 957 F.2d 12 , 16 (1st Cir. 1992); Hogan, 862
F.2d at 388.
In the case at hand, the relevant contract-law principle
is that "whenever possible, contracts should be construed to give
effect to every word, clause, and phrase." Crowe v. Bolduc, 365
F.3d 86 , 97 (1st Cir. 2004); see United States v. Alegria, 192 F.3d
179 , 185 (1st Cir. 1999). Thus, the phrase "other information,"
which appears in the proffer agreement, must mean something
different from the antecedent term "statements" (which refers to
statements that the defendant might make at the proffer session).
Any other interpretation would render the phrase "other
information" redundant (and, thus, meaningless).
Viewed in context, we think that the natural, common-
sense interpretation of the phrase "other information provided by
[the defendant]" in the proffer agreement encompasses any knowledge
the government gained at the proffer session because of the
defendant's presence there. See, e.g., Webster's Third New
International Dictionary 1160 (2002) (defining "information" as
"knowledge communicated by others or obtained from investigation,
study, or instruction"). As such, knowledge of the defendant's
voice tone, inflections, and speaking characteristics gleaned from
the defendant's speech at the proffer session is "other
information" that cannot be used against the defendant in the
government's case in chief. But that is exactly what the
government did: it elicited testimony from Officer Mazza on direct
examination about the knowledge of the defendant's voice that he
acquired at the proffer session and then, building on that
foundation, had Officer Mazza identify the defendant as the third
person who spoke during the recorded conversation between Williams
If more were needed — and we doubt that it is — another
settled principle of contract interpretation counsels in favor of
reading the phrase "other information provided" by the defendant
broadly. Under the doctrine of contra proferentem an ambiguous
term in a contract normally should be construed against the
interest of the drafter, and this praxis applies to proffer
agreements. See, e.g., United States v. Hill, 643 F.3d 807 , 875-76
(11th Cir. 2011). Here, the phrase "other information provided" by
the defendant cannot be said unambiguously to exclude the tone,
inflection, and other characteristics of the defendant's voice.
Struggling to parry these thrusts, the government
suggests that the language "statements made and other information
provided" in the proffer agreement was meant to mirror the
distinction between use immunity for oral testimony and act-of-
production immunity for documents and other tangible things. See
18 U.S.C. §§ 6001-6003. This suggestion is nothing more than an
attempt to rewrite the proffer agreement: the government could have
framed such a dichotomy when it drafted the proffer agreement, but
it did not do so. Whatever may be the contours of formal use
immunity granted by courts, it is the language of the proffer
agreement, not the language of the immunity statute, that defines
the parties' rights and responsibilities arising out of a proffer
session. See Hogan, 862 F.2d at 388. Consequently, we reject out
of hand the government's strained attempt to forge an analogy.
The government also contends that the phrase "other
information" cannot encompass the defendant's tone, inflections,
and other vocal characteristics because it could have successfully
moved to compel a voice exemplar from the defendant. See United
States v. Dionisio, 410 U.S. 1 , 5-7 (1973). To buttress this
contention, the government muses that the proffer agreement should
not be read to protect information that the government could have
procured by compulsion.
This contention is futile. We are not concerned with
what the government might have done but, rather, with what the
government did. See United States v. Santana, 175 F.3d 57 , 64 n.6
(1st Cir. 1999). The government never moved for a voice exemplar
here. Instead, it relied on its (mistaken) interpretation of the
proffer agreement. Much as it might like to do so, it cannot
reinvent that agreement now.
The short of it is that the existence of a parallel
universe in which the government properly obtained its sought-after
information does not render its misstep in this one any less
violative of the defendant's due process rights. A constitutional
end may not be reached by unconstitutional means.
In a last-ditch effort to save the day, the government
notes that the proffer agreement permits derivative uses of
"statements made or other information provided" by the defendant
during the proffer session. Clinging to this clause, it cursorily
suggests that Officer Mazza's voice identification testimony was a
derivative, not direct, use of information from the proffer
session. This is simply wrong: the government made a direct, not
a derivative, use of the proscribed information. See, e.g., United
States v. Pielago, 135 F.3d 703 , 710-11 (11th Cir. 1998)
(explaining that introducing information obtained from the
defendant against him is a direct use of that information).
The short of it is that the government, having agreed not
to use information provided by the defendant at the proffer
session, reneged on that promise and used such information at
trial. We will not countenance that sleight-of-hand. As we have
said, "the government must turn square corners when it undertakes
a criminal prosecution." Ferrara v. United States, 456 F.3d 278 ,
280 (1st Cir. 2006).
Our conclusion that the district court erred in admitting
Officer Mazza's voice identification testimony does not end our
odyssey. We must also decide whether the admission of that
testimony should be considered harmless.3
3 It is open to legitimate question whether the rule demanding "automatic reversal" based on "policy interest[s]" might apply to this case. Puckett v. United States, 556 U.S. 129 , 141 & n.3 (2009) (noting the rule as articulated by Santobello v. New York, 404 U.S. 257 (1971), but declining to address its continued viability). But the parties have not raised this issue and, in all events, the error was not harmless. Consequently, we need not
There are two standards for measuring harmless error in
a criminal case. The less grueling standard (viewed from the
government's coign of vantage) allows a conviction to stand as long
as a reviewing court can say "with fair assurance, after pondering
all that happened without stripping the erroneous action from the
whole, that the judgment was not substantially swayed by the
error." United States v. Sasso, 695 F.3d 25 , 29 (1st Cir. 2012)
(quoting Kotteakos v. United States, 328 U.S. 750 , 765 (1946)).
This less grueling standard applies chiefly to errors of a non-
constitutional dimension. The stricter standard, which applies to
errors of constitutional dimension, requires reversal unless the
government proves "beyond a reasonable doubt that the error did not
influence the verdict." Id. (citing Chapman v. California, 386
U.S. 18 , 23-24 (1967)).
Laboring to put the genie back in the bottle, the
government takes the position, without explanation or elaboration,
that the less grueling standard should apply to this error. We do
Proffer agreements are sui generis, and the contract-law
principles that courts use in construing them are glossed with a
concern that the defendant's consent to appear at a proffer session
should not become a lever that can be used to uproot his right to
fundamental fairness under the Due Process Clause. See United
probe this point more deeply.
States v. $87,118.00 in U.S. Currency, 95 F.3d 511 , 517 (7th Cir.
1996). "Unlike the normal commercial contract," it is "due process
[that] requires that the government adhere to the terms of any
. . . immunity agreement it makes." United States v. Pelletier,
898 F.2d 297 , 302 (2d Cir. 1990); see Hill, 643 F.3d at 874.
Because the government's adherence to the terms of the
proffer agreement is insured by the Due Process Clause, its failure
to adhere is perforce of constitutional dimension. It follows
inexorably that the stricter harmless-error standard applies to
such a failure. See, e.g., Hill, 643 F.3d at 877-79. For present
purposes, this means that the government must show beyond any
reasonable doubt that the guilty verdict was not influenced by the
trial court's erroneous admission of Officer Mazza's voice
The government strives to minimize the force of Officer
Mazza's testimony. It asseverates that the defendant's identity
was not in question because he admitted that he was the man in
Williams's vehicle. Thus, its thesis runs, Officer Mazza's
testimony could not have caused any harm. This asseveration,
however, is little more than magical thinking; it confuses and
conflates the identity of the person in Williams's vehicle with the
identity of the person who spoke during the antecedent telephone
call. We are directed to no portion of the record in which the
defendant conceded the latter point.
The government has a fallback position. It boasts that
evidence of the defendant's guilt was so overwhelming as to render
the tainted voice identification benign.4 This proposition relies
heavily on Williams's testimony and the videotaped recording of
what transpired in Williams's vehicle. But probative force, like
beauty, often lies in the eye of the beholder. Here, the videotape
showed no exchange of drugs, and Williams — especially in light of
the aborted bounty arrangement — hardly could be regarded as a
paragon of veracity.
These issues are not merely theoretical. The defendant
argued that Williams set him up presumably to earn the bounty, and
that Williams, not the defendant, supplied the drugs. While the
government's evidence was adequate to sustain the defendant's
conviction against a sufficiency challenge, "more is required to
show harmlessness beyond a reasonable doubt." United States v.
Perez-Ruiz, 353 F.3d 1 , 19 (1st Cir. 2003).
In the end, Officer Mazza's voice identification
testimony bore on both furcula of the defendant's two-fold argument
for acquittal. For one thing, the defendant claimed that it was
Williams who was responsible for the drugs that were later
confiscated by the authorities; yet Officer Mazza's voice
4 This rodomontade seems suspiciously self-serving. If the government's case was so strong, one might legitimately wonder why the government worked so tirelessly to overcome the district court's doubts about the propriety of the voice identification testimony and pave the way for its admission.
identification pegged the vehicle encounter as a pre-arranged drug
deal and, thus, undermined the defendant's argument that the
encounter was merely a staged show. For another thing, the
defendant vigorously attacked Williams's credibility; yet Officer
Mazza's testimony bolstered Williams's account of who had
participated in the crucial telephone call.
To cinch matters, we need look no further than the
prosecutor's summation to gauge the importance of Officer Mazza's
voice identification testimony. The prosecutor emphasized that the
jurors would "know that it was the defendant who got in the car and
who's on the telephone call beforehand because of the voice
identification made by Officer Mazza." The government should not
be allowed to have it both ways. Cf. United States v. Tierney, 760
F.2d 382 , 388 (1st Cir. 1985) ("Having one's cake and eating it,
too, is not in fashion in this circuit."). If Officer Mazza's
voice identification testimony was critical (as the prosecutor told
the jury), the government should not now be heard to dismiss that
testimony as trivia.
To sum up, we cannot say beyond a reasonable doubt that
the guilty verdict in this case was uninfluenced by the erroneous
admission of Officer Mazza's voice identification testimony.
Therefore, the defendant's conviction cannot stand.
We need go no further. For the reasons elucidated above,
we vacate the defendant's conviction and remand for a new trial in
which the district court shall exclude any testimony that is a
direct use of "statements made or other information" garnered from
the defendant's proffer session.
Vacated and Remanded.