FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Phillip N. Beauregard, with whom Law Offices of Beauregard,
Burke & Franco was on brief, for appellant.
T. Quinlivan, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
Torruella, Thompson, and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE
Freitas stands convicted of bulk-cash smuggling and currency
structuring, in violation of 31 U.S.C. §§ 5332(a)
and 5324(c). Freitas believes we must vacate his
convictions because, according to him, the district judge
quadruply erred - first by admitting certain statements under
the coconspirator exception to the hearsay rule; next by
instructing the jury that the government can prove the
concealment element of the bulk-cash-smuggling charge through
evidence of structuring, an instruction that wrongly removed
the mental-state element from both crimes; then by not
granting his motion for acquittal on the structuring count;
and finally by not adequately responding to the
government's prejudicial comments in closing argument and
at sentencing. Disagreeing, we affirm.
THE CASE GOT HERE
in the light most favorable to the jury's verdict,
see United States v. Rodríguez-Soler, 773
F.3d 289, 290 (1st Cir. 2014), the underlying facts are
2015, an IRS agent posing as a financial agent named
"Bob" cold-called Carlos Rafael. Nicknamed
"the Codfather," Rafael then owned Carlos Seafood,
a commercial-fishing business located in New Bedford,
Massachusetts. "Bob" told Rafael that he and a man
named "Lenny" - actually an undercover agent as
well - wanted to buy Carlos Seafood. His interest piqued,
Rafael agreed to meet with "Bob" and
"Lenny" to discuss a possible sale.
times the next month, in June 2015, "Bob" and
"Lenny" - wearing concealed body wires - met with
Rafael at Carlos Seafood. Rafael told them that he might be
willing to part with the business if they could come up with
$150 million or so. He also bragged that he had fish sales
that were not being taxed properly and that he avoided paying
income tax on piles of cash he was getting from sales to a
New York customer.
summering in Portugal, Rafael told the agents in a
secretly-recorded meeting in October 2015 that he had a
Portuguese friend named "Freitas" who worked for
the "Sheriff's Department" and could sneak cash
by security at Boston's Logan International Airport
("Logan"). Given the importance of what he said
there, we quote from the transcript of the recorded
conversation at length (fyi, Rafael is identified in the
transcript by his first name, Carlos):
CARLOS: But I guess in Boston, I can get the
money through. I have one of the guys in Boston, one of those
fuckin' agents who is my friend, and I give him the money
before I go through security.
LENNY: OK, and then he . . .
CARLOS: Then I go to the bathroom.
LENNY: And he gives you the money.
CARLOS: He gives me the motherfucking money.
CARLOS: Even if he is not in the airport, he
lives in Rhode Island, I'll call him up. I don't give
him nothing. He is my friend.
LENNY: Oh he's your friend.
CARLOS: I call him. I says, Hey, I'm
flying out tonight. "You're not fucking, I'm not
working tonight." No, you better get your fucking ass
here because I got like 60, 000 in my fucking ass. I
ain't going through the fucking thing. So he goes there,
I give him the envelopes, he puts them in his pockets. He
doesn't go through security because he has one of those
fuckin' badges. He's an agent over there.
CARLOS: He's been over to my house,
BOB: Heck yeah he's your buddy I'd
make him my buddy too. That's a good buddy to have.
CARLOS: He's a Portagee.
BOB: Oh, he's Portuguese? Even better.
CARLOS: He's from St. Michael, he's
from the Azores.
BOB: He's from there.
LENNY: You realize he works for the . . .