17-1966 | Omnilex

Testo completo

United States v. Vinas
17-1966-cr

# UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2017

Argued: May 7, 2018
Decided: December 6, 2018

Docket No. 17-1966-cr

UNITED STATES OF AMERICA,
Appellee,

-V .-
FRANCIS PATINO VINAS,
Defendant-Appellant,

Before: HALL AND CARNEY, Circuit Judges, AND KOELTL, District Judge .*

After being convicted following a jury trial of importing and possessing
with intent to distribute cocaine, the defendant-appellant moved for a new trial
on the ground that the Government violated Rule 16(a)(1)(A) of the Federal Rules

"Judge John G. Koeltl, of the United States District Court for the Southern
District of New York, sitting by designation.

of Criminal Procedure by making an inaccurate pre-trial disclosure that caused
him to forgo a nonfrivolous motion to suppress an inculpatory statement made
without Miranda warnings. The United States District Court for the Eastern
District of New York (Block, L.) denied the defendant's motion, holding that the
Government's disclosure had complied with Rule 16(a)(1)(A) and, in any event,
the defendant had not suffered substantial prejudice. We conclude that the
Government's disclosure in this case violated Rule 16(a)(1)(A) and that the
defendant suffered substantial prejudice as a result. We therefore VACATE the
district court's judgment and REMAND the case for further proceedings
consistent with this Opinion.

Judge Hall dissents in a separate opinion.

DANIEL HABIB, Federal Defenders of New York, Inc., New York, NY, for
Defendant-Appellant.

RYAN C. HARRIS, Assistant United States Attorney (Amy Busa and Andrew C.
Gilman, Assistant United States Attorneys, on the brief), for Richard P.
Donoghue, United States Attorney for the Eastern District of New York,
Brooklyn, NY, for Appellee.

JOHN G. KOELTL, District Judge:

This appeal requires us to decide whether the defendant is entitled to a
new trial because the Government's inaccurate pre-trial disclosure under Rule
16(a)(1)(A) of the Federal Rules of Criminal Procedure caused him to forgo
moving to suppress an inculpatory statement introduced at trial that he made
before receiving warnings specified in Miranda v. Arizona, 384 U.S. 436 (1966).
We conclude that a new trial is warranted. The Government's disclosure
violated Rule 16(a)(1)(A) and caused the defendant substantial prejudice. We
therefore VACATE the district court's denial of the defendant's motion for a new
trial and REMAND for further proceedings consistent with this Opinion.

We summarize here the evidence adduced at Vinas's three-day trial. The
factual circumstances of Vinas's arrest are undisputed except as noted below. On
November 15, 2015, the defendant, Francis Patino Vinas, returned to the United
States after a five-day trip to the Dominican Republic. He arrived at Terminal
Four of the John F. Kennedy International Airport in Queens, New York.
Together with his fellow passengers, Vinas approached the Primary Inspection
Area, where United States customs officials scanned his passport. Vinas then

retrieved a black roller suitcase and a blue backpack from the baggage carousel
and approached the Customs Control Point, where he presented the suitcase and
backpack for inspection. Vinas was selected for further inspection and referred
to the Baggage Inspection Area, where United States Customs and Border
Protection ("CBP") officer Francisco Santos was on duty.

After confirming that the contents of the suitcase and backpack belonged
to Vinas, Officer Santos directed Vinas to place his luggage on the counter.
Officer Santos opened the black roller suitcase, in which he noticed a black
plastic bag. From inside the black plastic bag, Officer Santos removed a bottle,
apparently containing a drink known as Mamajuana. Officer Santos was familiar
with Mamajuana, which he described as a rum- or brandy-based concoction that
contains, among other things, ginger, cinnamon, and sticks or wood chips.

This bottle of Manajuana struck Officer Santos as unusual. To Officer
Santos, the sticks in this bottle of Mamajuana "looked pressed against the glass
and [were] placed almost on purpose to conceal something in there. It didn't
look random at all." Appellant's App. ("A") 78. Officer Santos also noticed that
the bottle was heavy, indicating that "there was something in there that wasn't
supposed to be in there." A79. Officer Santos summoned a second CBP officer

who had experience with similar bottles. Officer Santos then sought and
received permission from his supervisor to take Vinas into a private room (the
"Search Room") "to examine the bottle further" because Officer Santos believed
there were drugs inside the bottle. A80. He also wanted to prevent Vinas from
"run[ning] away or something like that." A80. Officer Santos, who was armed,
and three other armed CBP officers then escorted Vinas into the Search Room.2

Officer Santos testified that, inside the Search Room, he asked Vinas where
Vinas got the bottle of Mamajuana, and Vinas responded that he bought the
bottle at a store outside the airport in the Dominican Republic. Officer Santos
continued to examine the bottle in the Search Room, discovering further
evidence of tampering. With permission from a supervisor, Officer Santos then
placed the bottle in an evidence bag and broke the bottom of the bottle, spilling
the contents of the bottle into the bag. Officer Santos observed "a lot of blue
oblong objects" floating amidst the liquor and sticks in the bag. A96. Vinas
asked, "[W]hat is that?" A98. Officer Santos removed one of the blue objects
from the bag and cut it open, revealing a white powdery substance, which field
testing revealed to be cocaine. Vinas "gave no reaction at all." A98. Officer

2 Officer Santos took Vinas's passport when he first examined Vinas's luggage
and maintained possession of it as the group entered the Search Room.

Santos then placed Vinas under arrest and moved him to a holding cell. It was
later determined that the bottle of Mamajuana contained 617.8 grams of cocaine,
worth about $60,000 retail.

United States Department of Homeland Security ("DHS") Special Agent
Kevin O'Malley and Officer Santos then interviewed Vinas in the holding cell.
Special Agent O'Malley and Officer Santos advised Vinas of his Miranda rights
at the outset of this interview, and Vinas expressly waived those rights. Vinas
then told Special Agent O'Malley that a friend named Chelo gave Vinas the
bottle of Mamajuana and asked Vinas to bring the bottle to the United States.
Officer Santos testified that, at some point, he told Special Agent O'Malley that
Vinas had previously made a contradictory statement, namely that Vinas
purchased the Mamajuana from a store. However, Special Agent O'Malley
testified that he did not recall Officer Santos's pointing out any inconsistency in
Vinas's statements about when and where Vinas acquired the bottle.

Approximately two hours later, at around 2:20 a.m., Special Agent
O'Malley and DHS Special Agent Walter Rivera conducted a second interview of
Vinas. Special Agents O'Malley and Rivera warned Vinas of his Miranda rights
before this interview as well, and again Vinas expressly waived those rights.

Vinas maintained during this interview that Chelo had given him the bottle of
Mamajuana. Vinas claimed that he did not know that there were narcotics inside
the bottle and that he was not paid to transport the bottle. Vinas told Special
Agent O'Malley that Chelo was very persistent in asking Vinas to transport the
bottle, and that Chelo repeated this request on three of the five days that Vinas
was in the Dominican Republic. Vinas said that Chelo had explained that, when
Vinas returned to the United States, Vinas would be sent a phone number for a
woman who would pick up the bottle. Vinas told Special Agent O'Malley that
he thought Chelo's request was strange but did not think anything of it because
he had known Chelo for some time.

Vinas gave the officers permission to search his cell phone and provided
the passcode. Vinas's phone contained text messages in the messaging
application WhatsApp between Vinas and Chelo from before and during Vinas's
trip to the Dominican Republic.

On January 26, 2016, a grand jury returned a two-count Indictment
charging Vinas with importation of cocaine, in violation of 21 U.S.C. §§ 952(a),
960(a)(1), 960(b)(3), and 18 U.S.C. §§ 2, 3551 et seq .; and possession of cocaine

with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and
18 U.S.C. §§ 2, 3551 et seq.

In February 2016, the Government produced discovery pursuant to Rule
16 of the Federal Rules of Criminal Procedure, including Vinas's signed Miranda
waiver and a document describing Vinas's statements to Special Agent O'Malley
that he had been given the bottle of Mamajuana by Chelo. The Government also
produced video recordings of the first inspection of Vinas's luggage by Officer
Santos, as well as footage of Vinas's being escorted into the Search Room.

Months later, in October 2016, the Government made a supplemental
production of Rule 16 material. The Government's disclosure stated:

During the initial inspection of his luggage by U.S. Customs and
Border Protection officers, Vinas stated, in sum and substance, that he
purchased the bottle of "Mamajuana" at a store in the Dominican
Republic.

A558. The defense did not move to suppress this statement before trial.

The trial began on Thursday, December 1, 2016, and ended on Monday,
December 5, 2016. The defense did not contest that the Mamajuana bottle
contained a quantity of cocaine that exceeded the quantity ordinarily presumed
to be for personal use. The only issue at trial, therefore, was whether Vinas knew
that the Mamajuana bottle contained cocaine. During the Government's opening

statement, the Government described the expected testimony from Officer Santos
that, after Vinas was taken to "a private search room," Vinas claimed to have
purchased the Mamajuana bottle at a store in the Dominican Republic (the "Store
Statement"). A47. Defense counsel immediately notified the district court that,
until the Government's opening, defense counsel was unaware that Vinas
purportedly made the Store Statement in the Search Room in the presence of four
armed CBP officers, prior to receiving Miranda warnings. Defense counsel
argued that, had he been aware of that factual context, he would have moved
before trial to suppress the Store Statement. The district court assured defense
counsel that counsel would have the opportunity to make any necessary motion,
noting that Vinas "may have a basis for a new trial." A85. The district court
nevertheless allowed the Government to proceed with Officer Santos's direct
testimony, in which Officer Santos testified that Vinas made the Store Statement
in the Search Room before receiving Miranda warnings.

As the Government explained in its initial summation to the jury, "[t]he
only central dispute [at trial was] the defendant's knowledge. Did the defendant
know that there was cocaine in that Mamajuana bottle that he brought froin the
Dominican Republic to the United States?" A362. The defense theory at trial

was that Vinas was an unwitting courier. To disprove that theory, the
Government pointed repeatedly to the Store Statement as a prior inconsistent
statement that showed that Vinas knew that the Mamajuana bottle contained
cocaine. While the Government also pointed to the text message exchanges with
Chelo, the unusually heavy bottle with wood chips pressed to the glass, and
Vinas's inaccurate customs declaration3 as evidence of Vinas's knowledge, the
Store Statement Vinas made in the Search Room, to which the Government
referred nine times in its initial and rebuttal summations, was central to its
argument that Vinas knew he was importing cocaine.

At the beginning of its initial summation, the Government identified the
Store Statement as a "lie," A355, arguing that Vinas's knowledge of the cocaine
was "why he lied to Customs and Border Protection about buying the bottle in
the store" and "why he changed his story when he spoke with his [sic] special
agents," A370. In its initial summation, the Government argued that there were
various pieces of evidence showing that the defendant knew that there was
cocaine in the bottle, including the Store Statement, and that each piece of

3 On his customs declaration, Vinas indicated that he was not transporting food
from the Dominican Republic. Vinas actually had a bag of food items, including
"sweets," which the Governinent introduced at trial. A364; see A521.

evidence "alone [was] compelling proof that the defendant knew of the drugs in
the bottle." A379. In its rebuttal summation, the Government asked, "If the
defendant truly didn't know that this bottle was loaded with drugs, why didn't
he tell Officer Santos the truth?" A413. The Government argued that "the fact
that the defendant repeatedly lied, in particular his lie about buying this bottle at
a store in the Dominican Republic, [was] absolutely devastating evidence of his
guilt." A414.

The jury convicted Vinas on both counts of the Indictment, and Vinas was
ultimately sentenced primarily to time served and a three-year term of
supervised release, including six months of home confinement. After his
conviction, Vinas moved for a new trial, arguing that the Government's Rule 16
disclosure stating that Vinas made the Store Statement "[d]uring the initial
inspection" had misled the defense into forgoing a pretrial motion to suppress
that statement. A558.

In an oral ruling, the district court denied Vinas's motion. The court
explained that Vinas himself was aware of when and where he made the Store
Statement and could have communicated that to defense counsel. The court
explained further that, rather than failing altogether to disclose the statement at

issue, the Government "merely used an imprecise description." SPA24. The
court described the Government's letter as "vague," "unfortunate," and
"imperfect." SPA24. "Rule 16 requires no more than the information offered by
the United States," the court reasoned, and Vinas's counsel was allowed to cross-
examine Officer Santos about the statement, which was "[m]ore than enough to
allow the jury to decide, if it was so inclined, that Santos had misrepresented"
the content or circumstances of the Store Statement. SPA25. Moreover, the court
explained, "it cannot be said with any fair degree of probability that [the Store
Statement] would have been suppressed." SPA26.

This appeal followed.

## II.

Rule 33(a) of the Federal Rules of Criminal Procedure provides that, on
"the defendant's motion, the court may vacate any judgment and grant a new
trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). This Court
reviews a district court's denial of a motion under Rule 33 for abuse of discretion.
United States v. Gabinskaya, 829 F.3d 127, 134 (2d Cir. 2016). A district court
abuses its discretion in denying a Rule 33 motion "when (1) its decision rests on
an error of law . . . or a clearly erroneous factual finding, or (2) its

decision -- though not necessarily the product of a legal error or a clearly
erroneous factual finding -- cannot be located within the range of permissible
decisions." United States v. Ulbricht, 858 F.3d 71, 112 (2d Cir. 2017) (alteration in
original) (quoting United States v. Forbes, 790 F.3d 403, 406 (2d Cir. 2015)).

Vinas argues that the Government's disclosure violated Rule 16(a)(1)(A)
and prejudiced him by misleading him into not moving to suppress the Store
Statement and therefore the district court erred in denying him a new trial. We
agree.

Rule 16(a)(1)(A) provides:

Upon a defendant's request, the government must disclose to the
defendant the substance of any relevant oral statement made by the
defendant, before or after arrest, in response to interrogation by a
person the defendant knew was a government agent if the
government intends to use the statement at trial.

Fed. R. Crim. P. 16(a)(1)(A). The district court concluded that the Government
complied with the requirements of Rule 16, and that, in any event, Vinas suffered
no prejudice from any violation. That ruling was error because it rested on
reasoning that this Court rejected in United States v. McElroy, 697 F.2d 459 (2d
Cir. 1982).

In McElroy, the defendant was convicted of conspiracy to possess and
distribute heroin and for possession and distribution of heroin in connection
with the attempted sale of heroin to an undercover agent with the United States
Drug Enforcement Administration ("DEA"). Before trial, the Government
responded to the defendant's request for Rule 16 materials by producing a
post-arrest statement by the defendant, which the Government said the
defendant "volunteered" to a DEA agent, in which the defendant claimed that he
was present at the transaction only out of concern for the safety of an accomplice.
Id. at 461. At trial, it emerged that prior to making this statement, the defendant
had orally invoked his rights under Miranda to remain silent and to meet with a
lawyer before being questioned further. Id. at 461-62. The defendant
subsequently initiated a conversation with a DEA agent, who advised him of his
Miranda rights a second time. Id. at 461. The defendant then waived those
rights and made the inculpatory statement at issue. Id. This Court held that the
Government's failure to disclose the defendant's initial oral invocation of his
Miranda rights violated Rule 16(a)(1)(A) and reversed the defendant's
conviction.

The district court in this case determined that the Government's disclosure
of the Store Statement technically complied with Rule 16 because "[n]othing .. .
was concealed," or "withheld." SPA25. That conclusion was error.

In McElroy, this Court held that "Rule 16(a)(1)(A) requires the government
to disclose the substance not only of the incriminating post-arrest oral statements
which it intends to use at trial, but also the substance of the defendant's
responses to any Miranda warnings which preceded the statements." 697 F.2d at
464. Importantly, in McElroy, not only did the Government not "intend[] to use
the statement at trial," Fed. R. Crim. P. 16(a)(1)(A), but the Government was
prohibited from doing so, McElroy, 697 F.2d at 464 (citing Doyle v. Ohio, 426 U.S.
610 (1976) (holding that prosecutors are prohibited from referring at trial to a
defendant's invocation of Miranda rights for purposes of impeachment)).

McElroy's holding followed from a careful analysis of the policies

underlying Rule 16. As this Court explained, Rule 16

reflects the drafters' studied conclusion that pretrial discovery of oral
statements serves significantly to protect the defendant's right to a
fair trial. Pretrial discovery prevents the defendant from being
unfairly surprised with his statements at trial and enhances the ability
of defense counsel to suppress inadmissible statements. In particular,
statements obtained in violation of Miranda are most likely to be
identified and suppressed if they are made available to counsel prior

to trial. In short, Rule 16 discovery is an important guarantor of
simple fairness to defendants.

Id. at 463 (citation omitted). Therefore, even though the defendant's invocation
of his Miranda rights in McElroy was outside the literal bounds of Rule 16
because the Government could not introduce that invocation at trial, this Court
held that "for purposes of Rule 16, the statement which the government seeks to
use on direct, and the defendant's response to preceding set(s) of Miranda
warnings, comprise but a single 'statement." Id. at 465.

In this appeal, the Government argues that the disclosure it made to Vinas
adhered to Rule 16 because the Government provided the precise information
subject to disclosure -- namely, the substance of the Store Statement. That
argument "interprets Rule 16 with a degree of literalism inappropriate to the
Rule's purpose." Id. at 464. Here, as in McElroy, the Government's disclosure
offered an accurate summary of the defendant's purported statement, combined
with a misleading description of the circumstances under which the defendant
purportedly made it, and so misinformed defense counsel about the possible
grounds for suppression.

In McElroy, the Government stated that the defendant had "volunteered"
the statement the Government sought to introduce, without disclosing the

defendant's prior invocation of Miranda rights or his desire to remain silent and
obtain a lawyer. In this case, the Government's disclosure described Vinas as
having made the Store Statement during the "initial inspection," which
reasonably could be interpreted as referring to the inspection in the open, public
area of the airport where Vinas first encountered Officer Santos. During that
interaction, Vinas was not conceivably in "custody" such that he would be
entitled to Miranda warnings. See United States v. FNU LNU, 653 F.3d 144, 148
(2d Cir. 2011) ("An interaction between law enforcement officials and an
individual generally triggers Miranda's prophylactic warnings when the
interaction becomes a 'custodial interrogation.""); see also id. at 153-54
(explaining that a traveler "arriving at an American airport . .. will expect some
constraints as well as questions and follow-up about his or her citizenship,
authorization to enter the country, designation, baggage, and so on").

The Government argues that the term "initial inspection" accurately
described "one continuous inspection of Vinas's luggage that began when CBP
officers first opened his luggage and concluded when those officers finished
examining the contents of that luggage, after discovering ... cocaine inside the

Mamajuana bottle." Government's Br. 30-31. That is not a fair description of the
circumstances under which the Store Statement was made.

The district court described the Government's characterization as "vague,"
"unfortunate," and "imperfect." And Officer Santos testified that he did not tell
prosecutors that Vinas made the Store Statement "during the initial inspection."
A114. Moreover, the evidence indicated that the search and questioning in the
Search Room was a separate event from the initial inspection in the Baggage
Inspection Area. In the Baggage Inspection Area, the bottle of Mamajuana was
removed from the black roller suitcase. The black roller suitcase was repacked
and zipped, and Vinas pulled the suitcase to the Search Room while one of the
CBP officers carried the bottle of Mamajuana. Four CBP officers escorted Vinas
to the Search Room. There simply is no credible way to describe what took place
in the Search Room, where Officer Santos discovered the cocaine and where
Vinas made the Store Statement, as part of the "initial inspection." We therefore
conclude that the Government's disclosure in this case was misleading and
violated its obligations under Rule 16(a)(1)(A). 4

4 The Government argues that it was plain from its Rule 16 disclosure that the
relevant inspection was not the inspection by Officer Santos in the Baggage
Inspection Area but rather the inspection in the Search Room because the
Government's disclosure referred to multiple "officers." However, Officer

The district court also erred in concluding that any violation of Rule 16 did
not substantially prejudice Vinas.

A violation of Rule 16 does not automatically entitle a defendant to a new
trial. A defendant seeking a new trial "must show that the failure to disclose
caused him substantial prejudice." United States v. Stevens, 985 F.2d 1175, 1181
(2d Cir. 1993); see United States v. Lee, 834 F.3d 145, 158 (2d Cir. 2016), cert.
denied, 137 S. Ct. 1599 (2017); McElroy, 697 F.2d at 465. To show substantial
prejudice a defendant must "demonstrate that the untimely disclosure of the
statement adversely affected some aspect of [the defendant's] trial strategy."
United States v. Adeniji, 31 F.3d 58, 64 (2d Cir. 1994). "In assessing that question,
the court analyzes the nature of the evidence sought, the extent to which it bore
on critical issues in the case, the reason for its nonproduction, and the strength of
the government's untainted proof." Stevens, 985 F.2d at 1181.

Santos summoned the assistance of two other officers during the inspection in
the Baggage Inspection Area. The Government's use of the plural "officers" in its
Rule 16 disclosure therefore could not have distinguished the inspection in the
Search Room from the inspection in the Baggage Inspection Area.

The parties do not dispute that the Store Statement went to the heart of the
singular issue in the case -- whether Vinas knew that the Mamajuana bottle
contained cocaine. The district court did not find, and the Government does not
now contend, that the strength of the Government's untainted evidence was so
great that the Store Statement was irrelevant to the outcome of trial. Rather, the
district court focused on the other means by which the defense could have
obtained the correct information and the merits of Vinas's hypothetical
suppression motion. The district court explained that the central concern that
ultimately drove its decision to deny Vinas's motion for a new trial was that
Vinas himself was aware of when and where he made the Store Statement and
"could have told [defense counsel] that." SPA23.

This Court rejected similar reasoning in McElroy concluding that "the
availability of particular statements through the defendant himself does not
negate the government's duty to disclose statements subject to Rule 16." 697
F.2d at 465. As this Court explained,

[T]he government's failure to disclose prejudiced McElroy because it
kept from his counsel's eyes possible grounds for a suppression
motion. We reject as unrealistic the government's argument that
appellate relief must be denied because counsel could have obtained
from McElroy the information necessary to make the motion. The
defendant in a criminal case often mistrusts his counsel who, in most

instances, has been assigned and not chosen, or believes that his
counsel will best defend him if he is kept ignorant of the facts. Even
a defendant who cooperates with his counsel cannot always
remember all of the relevant facts, or realize the importance to his
defense of seemingly inconsequential police actions. Defense
lawyers, as a result, often learn much more about what has happened
from government discovery, formal and informal, than they do from
their clients. This fact surely is one of the reasons behind the adoption
of Rule 16 . . . .

Id. It was therefore error for the district court to rely on Vinas's knowledge of
where and when he made the Store Statement in denying Vinas's motion for a
new trial.

The district court also concluded that Vinas did not suffer prejudice
because "it cannot be said with any fair degree of probability that Vinas's . . .
statement would have been suppressed." SPA26. That reasoning overstates the
defendant's burden. In McElroy, this Court found that the defendant should be
afforded a new trial because the suppression motion sought "would not have
been frivolous." McElroy, 697 F.2d at 465 (emphasis added).

The Government contends that any suppression motion in this case would,
in fact, have been frivolous because Vinas was not in "custody" when he
provided the Store Statement and thus was not entitled to Miranda warnings. A
person is in "custody" for purposes of Miranda when a reasonable person in the
subject's position would have understood that the person was "subjected to

restraints comparable to those associated with a formal arrest." FNU LNU, 653
F.3d at 153 (quoting Georgison v. Donelli, 588 F.3d 145, 155 (2d Cir. 2009)).
Determining whether a suspect is in "custody" for Miranda purposes requires a
contextual analysis of the particular facts of the case. Id. (explaining that the
relevant factors for determining whether a suspect is in "custody" include the
duration and location of the questioning, whether the suspect volunteered for the
questioning, whether restraints were used, whether weapons were present or
drawn, and whether the suspect was told the suspect was free to leave).

Some circumstances suggested that Vinas may have been in "custody"
when he made the Store Stateinent. Vinas was taken to a closed room
surrounded by four armed officers. His passport had been taken from him, and
he was taken to the room to prevent him from fleeing. The officers had reason to
believe that he possessed a controlled substance that he had just imported into
the United States. See, e.g., United States v. Ali, 86 F.3d 275, 276-77 (2d Cir.
1996). But we cannot conclude whether Vinas was in "custody" at the time the
Store Stateinent was made because no evidentiary hearing was held to determine
all the factual circumstances of the Store Statement. We certainly cannot
conclude, as the Government argues, that Vinas was definitively not in

"custody" at the time the statement was made. As Vinas points out, it was
precisely the Government's misleading disclosure about the circumstances under
which the statement was made that caused defense counsel to forgo making a
suppression motion and developing a record.5

The district court also reasoned that Vinas did not suffer prejudice because
defense counsel was allowed to cross-examine Officer Santos about the Store
Statement, which was "[m]ore than enough to allow the jury to decide, if it was
so inclined, that Santos had misrepresented" what Vinas said or the
circumstances under which Vinas said it. SPA25. But where the Government
obtains a defendant's statement in violation of the Fifth Amendment, the remedy
is suppression of that statement, not simply allowing the defense to question
whether the statement was made. In McElroy, defense counsel was also able to
cross-examine the Government's witness and "by his questions sought to imply
. . . that the admissions were never made." 697 F.2d at 461. Just as in McElroy,
that Vinas's counsel was able to cross-examine Officer Santos regarding the Store

5 In FNU LNU, this Court said that it will "normally remand the case to the
district court to determine, in the first instance, whether custody existed." 653
F.3d at 152. No remand was necessary in that case because, unlike in this case,
the district court "admirably compiled an extensive record documenting the
circumstances of the defendant's questioning." Id.

Statement did not cure the error that led defense counsel to forgo a non-frivolous
motion to suppress the statement entirely.

The Government also argues that Vinas did not suffer any prejudice from
its Rule 16 disclosure because Vinas did not move to suppress the Store
Statement before trial. That argument is circular. The very question at issue is
whether the Government's misleading disclosure deterred Vinas from credibly
making such a motion.

The Government contends further that Vinas waived any objection to the
introduction of the Store Statement by failing to move midtrial to suppress the
statement. That argument misconstrues the record. After defense counsel heard
the opening statement by the Government and before Officer Santos testified
about the Store Statement, defense counsel raised the issue with the court outside
the presence of the jury:

[DEFENSE COUNSEL]: Well, I think had the notice indicated that it was
made in that subsequent inspection where there were four officers in a room
that looks like an interrogation room, I would have moved to suppress it,
Your Honor.

THE COURT: Look, the jury is coming in.

You can make whatever application you want. We are not going to deal
with it this very second because we have to continue with the trial. If you
think you have a good basis for a motion, you will have an opportunity to
make it. Let's go forward with the testimony first.

[DEFENSE COUNSEL]: Your Honor, this is all I will say. I would have
moved to suppress the statement. I didn't get an opportunity to due to an
error in the notice as to when it was made.

THE COURT: I understand that. So you may have a basis for a new trial.
A85.

Immediately after this exchange, however, the Government elicited
Officer Santos's testimony about the Store Statement. At that point, short of
moving for a mistrial, defense counsel could no longer prevent the jury from
hearing the statement. The district court thus provided no meaningful
opportunity during the trial for defense counsel to move to suppress the
statement. We conclude, in any event, that defense counsel properly preserved
his objection to the introduction of the Store Statement by promptly alerting the
district court to the missed opportunity for a pretrial suppression motion. We
are therefore also satisfied that Vinas has shown that "the untimely disclosure of
the statement adversely affected some aspect of [Vinas's] trial strategy." See
Adeniji, 31 F.3d at 64.

Finally, the strength of the Government's untainted proof does not compel
a different result. See Stevens, 985 F.2d at 1181. The other evidence that the
Government offered at trial -- namely the suspicious appearance and weight of
the Mamajuana bottle, Vinas's inaccurate customs declaration, and the text

messages between Vinas and Chelo -- may have been consistent with Vinas
knowing that the Mamajuana bottle contained an illicit substance. However,
none of that evidence proved Vinas's subjective knowledge -- the only issue
disputed at trial. As the Government argued to the jury in its rebuttal
summation, "the fact that the defendant repeatedly lied, in particular his lie
about buying this bottle at a store in the Dominican Republic, [was] absolutely
devastating evidence of his guilt." SPA7.6 We accept the Government's
characterization of the Store Statement as "devastating." Had the Store
Statement been suppressed, the quantum of proof at trial would have been
significantly altered in Vinas's favor.7

We therefore conclude that the Government's misleading Rule 16
disclosure denied Vinas a fair trial. The motion for a new trial should have been
granted.

6 The untainted evidence in McElroy tied the defendant to the heroin in that case
more directly than the untainted evidence here tied Vinas to the cocaine. 697 F.2d
at 460 (the defendant's accomplice, who cooperated with the Government,
testified that the defendant handed her the heroin before the transaction).

7 In light of this disposition, we need not reach Vinas's claims regarding the
prosecutors' allegedly improper remarks in the summations.

## CONCLUSION

We have considered the parties' remaining arguments and find them to be
either moot or without merit. For the reasons explained above, the judgment of
the district court is VACATED and the case is REMANDED for further
proceedings consistent with this Opinion.

Hall, J. (dissenting):

In my view, respectfully, the majority mis-analogizes this case to United States
v. McElroy, 697 F.2d 459 (2d Cir. 1982). Whereas in McElroy the Rule 16 violation
was blatant and the disclosure inaccurate, in the case before us reasonable minds
can clearly disagree as to whether there was a Rule 16 violation. While I find all
three of us to be possessed of reasonable minds, I am on the other side of the
proverbial fence from the majority.

In McElroy, as part of its Rule 16 disclosures, the Government "had told
[defense] counsel . . . that McElroy's statements had been 'volunteered' and had
not been recorded in any written report." Id. at 461. At trial, defense counsel then
questioned the Government's witness (a Drug Enforcement Agency agent) about
whether McElroy's admissions had been recorded in any written report. Id.
"Counsel by his questions sought to imply that the government's failure to record
a piece of evidence as important as the defendant's own admissions might mean
that the admissions were never made. Counsel asked the government to stipulate
that none of the DEA agents' reports mentioned the alleged admissions." Id. At
that point, when counsel asked the prosecutor to stipulate that the defendant's
admissions had not been recorded in writing, the prosecutor revealed for the first

time a written DEA report that contained McElroy's admissions. Id. The
prosecutor admitted that he had neglected to disclose the report, and the defense
moved for a mistrial or a suppression hearing, both of which were denied. Id. at
642. Defense counsel then elicited testimony from a DEA agent that McElroy had
initially not only refused to answer questions, but he had also told agents, after
receiving Miranda warnings, that he wanted a lawyer. Id. The Government had
thus made inaccurate statements regarding the existence of a written report and
the substance of McElroy's response to Miranda warnings. The district court and
the panel of this Court agreed that the Government had violated Rule 16. Id. at
463.1

In the case before us, by contrast, the Government made no inaccurate
disclosure. Or, as the district court put it, "the Government did not fail to disclose
a single relevant statement and merely used an imprecise description .. . there is
no pertinent evidence that was hidden from Mr. Vinas ... nothing ... was
concealed, no material, no matter withheld." Spec. App'x at 23 - 24. Although the
disclosure of which Vinas complains was vague, the "substance of [the] relevant

1 The district court in McElroy concluded that although the Government had violated Rule
16, McElroy had not been prejudiced by that misconduct. Id. at 463. Because I would
find no Rule 16 violation here, it is unnecessary to address whether Vinas was prejudiced
by the form of the Rule 16 disclosure.

oral statement made by the defendant" was conveyed, Fed. R. Crim. P. 16(a)(1)(A).
That is not to say that the government always complies with Rule 16 when it makes
vague statements short of affirmatively misleading, only that in this case I do not
think the ambiguity rose to the level of non-compliance. "Although Rule 16(a)
provides a mechanism for liberal discovery, it was not intended to provide the
defendant with access to the entirety of the government's case against him."
United States v. Percevault, 490 F.3d 126, 130 (2d Cir. 1974). I thus see no abuse of
discretion in the trial court's decision to deny Vinas's Rule 33 motion. United States
v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009).

If the majority were to agree with me, we would also need to reach Vinas's
argument that he was unfairly prejudiced by the prosecutor's summation at trial.
See Majority Op. at 26 n.7. "[A] claim that a prosecutor's summation unfairly
prejudiced a defendant" is reviewed de novo. United States v. Daugerdas, 837 F.3d
212, 227 (2d Cir. 2016). But "[a]n improper summation will only warrant a new
trial when the challenged statements are shown to have caused substantial
prejudice to the defendant; rarely will an improper summation meet the requisite
level of prejudice." Id. (quoting United States v. Mapp, 170 F.3d 328, 337 (2d Cir.
1999)). In other words, the defendant "must show not simply that a particular

summation comment was improper, but that the comment, viewed against the
entire argument to the jury, and in the context of the entire trial, was so severe and
significant as to have substantially prejudiced him ... such that the resulting
conviction [was] a denial of due process." United States v. Williams, 690 F.3d 70, 75
(2d Cir. 2012). "Often, the existence of substantial prejudice turns upon the
strength of the government's case: if proof of guilt is strong, then the prejudicial
effect of the comments tends to be deemed insubstantial; if proof of guilt is weak,
then improper statements are more likely to result in reversal." United States v.
Modica, 663 F.2d 1173, 1181 (2d Cir. 1981). Here, even if we were to conclude the
comments of which Vinas complains were improper, the judgment should be
affirmed because Vinas has not met his burden of demonstrating substantial
prejudice. The government's case was buttressed by incriminating text messages,
inconsistent statements made by Vinas, and other evidence the jury found
credible.

In summation at trial, Vinas's counsel argued that the prosecution was putting
a "spin" on the testimony and incriminating text messages and had "just
disregarded" as "inconvenient" evidence of innocence, such as "how cooperative
[and consistent Vinas] was from the word go." App'x at 383. Defense counsel

indeed went so far as to argue that the prosecution was "misleading" the jury.
App'x at 408. On rebuttal, the Assistant United States Attorney repeatedly argued
to the jury "the defense is trying to dupe you" and "grasping at straws," but he
also discussed extensively the substantial evidence against Vinas. App'x at 410,
415, 425. While the prosecutor's ad hominem barb might better have been left
unstated, it did not substantially prejudice Vinas. See United States v. Resto, 824
F.2d 210, 212 (2d Cir. 1987) (holding that a prosecutor's comments that referred to
the defendant's testimony as "lies" were permissible responses to contentions
made by defense counsel in summation); Modica, 663 F.3d 1173, 1181 - 82 (holding
that a prosecutor's plea to the jury not to let the defendant "walk out of this room
laughing at you," was improper, but "did not result in substantial prejudice to
appellant or deprive him of a fair trial.").

I would affirm the judgment.

17-1966-cr

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