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United States v. Freitas

United States Court of Appeals, First Circuit

September 6, 2018

UNITED STATES OF AMERICA, Appellee,
v.
ANTONIO M. FREITAS, Defendant, Appellant.

          APPEAL 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.

          Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          THOMPSON, CIRCUIT JUDGE

         PREFACE

         Antonio Freitas stands convicted of bulk-cash smuggling and currency structuring, in violation of 31 U.S.C. §§ 5332(a) and 5324(c).[1] 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.

         HOW THE CASE GOT HERE

         Presented 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 easily summarized.

         Smelling Something Fishy

         In May 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.

         Two 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.

         After 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.
BOB: Nice.
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.

         The transcript continues:

CARLOS: He's been over to my house, we're buddies.
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.
[crosstalk]
LENNY: You realize he works for the . . . ...

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