United States v. Calderon ( 1996 )

USCA1 Opinion

                            United States Court of Appeals

                                For the First Circuit

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        No. 95-1707



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                   JAIME CALDERON,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Steven J. McAuliffe, U.S. District Judge]
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                                        Before



                                Stahl, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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            Merin Chamberlain for appellant.
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            Jean B. Weld, Assistant United States Attorney, with whom Paul M.
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        Gagnon, United States Attorney, was on brief, for the United States.
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                                  February 27, 1996

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                      LYNCH, Circuit Judge.   Having been convicted  by a
LYNCH, Circuit Judge.
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            jury  of  carjacking  and   kidnapping,  Jaime  Calderon  was



            sentenced  to 30  years of  imprisonment, and  five years  of



            supervised  release  thereafter.    He  now   challenges  the



            verdict,  saying  that  certain  evidence  should  have  been



            suppressed and  he should  have been given  a hearing  on the



            motion  to suppress,  that  the  superseding  indictment  was



            invalid, that there was insufficient evidence to convict, and



            that  the   jury's  conviction  of  him  on  two  counts  was



            impermissibly inconsistent with  its acquittal of him  on two



            other  counts.   There  being  more  than  ample evidence  to



            convict  and  none   of  the  asserted  errors   having  been



            committed, we affirm.   Indeed, this is  a case in which  the



            police  search was  backed by  more than  the usual,  and the



            careful  efforts  by  the  police  to  have  both   belt  and



            suspenders  to support  the search  marks  more, rather  than



            less,  concern  for adherence  to the  procedural protections



            afforded defendants.



            The Crime
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                      On  the evidence, the jury was entitled to find the



            following.  On August 31, 1994, Calderon heard that two young



            men  were  selling  stereo  speakers  out of  a  van  in  his



            neighborhood  in Nashua, New Hampshire.  Emboldened by access



            to newly  stolen guns, Calderon  decided to take the  van and



            the speakers.   Calderon, age 33, recruited  three teenagers,



            including  his nephew  Jose  Hernandez,  to  help  him.  When







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            Hernandez  originally balked,  his uncle  excoriated him  and



            called him a "chicken."  The other two recruits, Angel Rivera



            and Julio Sanchez,  approached the two young  stereo salesmen



            and asked  if they  would take them  in the  van to  a nearby



            place  where  they  could  make  a  purchase  outside of  the



            presence of police  officers who might  be looking for  them.



            Once  inside the  van,  Rivera  and Sanchez  used  a gun  and



            chokeholds to force the two salesmen  to the back of the van,



            where  they were  made to  lie,  face down.   The  carjackers



            struck one on the head  with a gun, causing profuse bleeding,



            and told the  two men that if  they ever went to  the police,



            they would be hunted down at their homes and killed.



                      Rivera and Sanchez  picked up Calderon in  the van,



            at his  apartment,  where  he  assumed the  role  of  driver.



            Hernandez joined the  group as the van left the neighborhood.



            Because the salesmen were face down, they  could not identify



            Calderon,  but  were  aware  of  his  presence  in  the  van.



            Calderon, who was in  charge, gave instructions that  "if the



            kids get smart or something, . . . smack them around a little



            just  to   calm  them   down."    The   van  was   driven  to



            Massachusetts.   In Lowell, Calderon, a heroin addict, bought



            heroin and  unloaded some  of the speakers.   The  two "kids"



            were  held with  their faces  down for  three hours  and then



            dumped into a wooded ditch in Billerica after one of them was



            kicked in the head.







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                      Calderon's  defense at  trial  was  that he  simply



            accepted a ride to Lowell, where he knew he could buy heroin,



            and had no part in the carjacking or kidnapping.  A search of



            the apartment  of Calderon's girlfriend,  however, turned  up



            both the stolen speakers and Calderon.



                      In  the  interim,  a  disquieted  Hernandez  turned



            himself in to the Nashua police and voluntarily cooperated.



            The Search
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                      Based on information from  a confidential informant



            that  at least  one pair  of the  stolen speakers was  at the



            apartment  of  Carmen  Delgado,  Calderon's  girlfriend,  the



            police went to Delgado's apartment at 11 p.m. on September 6,



            1994.  At that time the police had an outstanding warrant for



            Calderon's arrest for a failure  to appear on a motor vehicle



            violation and Calderon  was a prime suspect in the kidnapping



            and carjacking.    The officers  had reason  to believe  that



            Calderon was living at the address.



                      The police  knocked and, when  Delgado answered the



            door, they asked  for permission to search.   An officer also



            read  from  a consent  form.    Delgado  gave consent.    The



            officers then asked  her to sign the consent  form, which she



            did.   Two of  the stolen speakers  were in plain  sight.  In



            addition, there was a man in the living room.  The man gave a



            name, not the name "Jaime Calderon," and four different dates



            of birth.  An officer stepped outside to look at a photograph







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            of Calderon, realized the man  was Calderon, and went back in



            and arrested him.  Not knowing who or what was in the rest of



            the apartment, the police searched the remainder.  They found



            two other speakers, of the  type stolen, in a bedroom closet.



            A few hours later, the officers  obtained a warrant to make a



            detailed  search of the  apartment for weapons  and speakers.



            Delgado gave the police inconsistent versions of her story to



            the   effect  that  the   speakers  came  to   her  apartment



            innocently.



            Motion to Suppress
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                      Calderon argues  that the district  court erred  in



            denying  his   motion  to   suppress   evidence  without   an



            evidentiary hearing and that on  the merits the motion should



            have  been granted.    The decision  to  hold an  evidentiary



            hearing is committed  to the discretion of the district court



            and our review  is for abuse of that discretion.   See United
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            States v. Lewis, 40 F.3d 1325, 1332 (1st Cir. 1994).
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                      Evidentiary  hearings  on motions  to  suppress are



            required  only where a  defendant makes a  sufficient showing



            that the  evidence seized  was the  product of  a warrantless



            search that does not fall within any exception to the warrant



            requirement.  Id.   The burden is on the defendant  to allege
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            facts,  "sufficiently   definite,  specific,   detailed,  and



            nonconjectural,  to enable  the  court  to  conclude  that  a











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            substantial claim  is presented."   Id.  (internal quotations
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            omitted).



                      Calderon argues that the motion to  suppress should



            have been  granted because Delgado  gave no valid  consent to



            the search, and that it was  error for the district court not



            to take  evidence and  grant the motion.   Leaving  aside the



            question of whether Delgado's consent was necessary under the



            circumstances,1 we analyze  the issue as Calderon  has framed



            it.   Calderon posits  that because Delgado  primarily speaks



            Spanish,  she could  not have  understood  what the  English-



            speaking police were saying in their late night, disorienting



            appearance at  her apartment.   But this is a  supposition to



            which Calderon gave  no flesh when he had  the opportunity on



            the  motion to  suppress.   Calderon  filed no  affidavits in



            support of the motion, not  even from Delgado, on whose state



            of  mind  he  now  so  heavily relies.2    In  contrast,  the



            prosecution, in opposing  the motion, provided copies  of the




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            1.  For example, the police believed Calderon to be living

            with Delgado and had an arrest warrant for Calderon.

            "Generally, the police do not need a search warrant to enter

            a suspect's home when they have an arrest warrant for the

            suspect."  United States v. Lauter, 57 F.3d 212, 214 (2d Cir.
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            1995); see also Payton v. New York, 445 U.S. 573, 603 (1980).
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            2.  On appeal, Calderon asserts for the first time that the

            police officers had already crossed the threshold of the

            apartment when they asked Delgado for her consent, and that

            this was an additional factor showing coercion.  The

            argument, not having been made before the district court, is

            waived.  See United States v. Carvell, 74 F.3d 8, _, No. 95-
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            1606, slip op. at 15 (1st Cir. Jan. 19, 1996).



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            police  reports which told  a different story.   Delgado gave



            the police varying versions of how the speakers came to be in



            the  apartment.   There was  no indication  that she  did not



            comprehend the explanation of the consent form or voluntarily



            execute  it -- indeed, all indications  were to the contrary.



            Calderon presented no evidence at all that Delgado's will was



            "'overborne'" or  that she  suffered a  "'critically impaired



            capacity  for   self-determination.'"     United  States   v.
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            Wilkinson, 926 F.2d 22, 25 (1st Cir.) (quoting Schneckloth v.
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            Bustamonte, 412 U.S. 218, 225 (1973)), cert. denied, 501 U.S.
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            1211 (1991).



                      The  district   court  explained   its  denial   of



            Calderon's motion to suppress without an evidentiary hearing:



                      Defendant   vaguely   claims   that   Ms.

                      Delgado's  consent  was  coerced  or  was

                      otherwise ineffective,  but he  offers no

                      affidavit or  statement from  Ms. Delgado

                      to    that    effect,     describes    no

                      circumstances  supporting  his assertion,

                      and  makes no offer  of proof relative to

                      any  other facts  that might  support his

                      assertion.



            There is no basis to disturb the district court's decision.



            Constructive Amendment
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                      Calderon's  second argument  is  that  there was  a



            "constructive amendment"  to his indictment, in  violation of



            his    Fifth  and  Sixth  Amendment  rights.    "The  [F]ifth



            [A]mendment  requires that  a defendant  be tried  only  on a



            charge made  by  the grand  jury,"  and the  Sixth  Amendment







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            "requires  that the defendant  be informed of  the nature and



            cause of the  accusation."  United States v.  Kelly, 722 F.2d
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            873, 876 (1st Cir. 1983), cert. denied, 465 U.S. 1070 (1984).
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            When Calderon was  first indicted on September  14, 1994, the



            kidnapping charge omitted the phrase "for ransom or reward or



            otherwise,"  a  necessary element  of  the offense.    See 18
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            U.S.C.   1201.  Subsequently,  the missing phrase was  added,



            and that superseding indictment was presented to a grand jury



            on  October 26,  1994,  which  returned it.    And that  fact



            disposes of Calderon's claim.  Cf. United States v. Dunn, 758
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            F.2d  30, 35 (1st  Cir. 1985) (constructive  amendment occurs



            where  "the charging  terms of  the  indictment are  altered,



            either literally or in effect,  by prosecution or court after
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            the  grand jury  has  last passed  on them"  (emphasis added;
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            internal quotations  omitted)).  A defendant  cannot complain



            of  an improper constructive  amendment if the  indictment is



            actually  amended by  resubmission to  the grand jury.3   Cf.
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            United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert.
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            denied, 488 U.S. 852 (1988).
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            Sufficiency of Evidence
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                      Calderon   argues  that   there  was   insufficient



            evidence for the  jury to have found  him guilty, and so  the




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            3.  Since Calderon's argument that it was error for the

            district court to have denied his motion for the transcripts

            of the second grand jury sitting is premised on there having

            been an improper constructive amendment, we do not address

            it.



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            district court erred in not granting his motion for acquittal



            under Fed. R. Crim.  P. 29.  "In  reviewing a sufficiency  of



            the evidence claim we look at the evidence  in the light most



            favorable to the  verdict."  United States  v. Cruz-Kuilan, _
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            F.3d _, _,  Nos. 94-2217 & 95-1390,  slip op. at 6  (1st Cir.



            Feb. 5, 1996).



                      The thrust of Calderon's challenge is that the jury



            should not have believed  the version of the story,  contrary



            to  his,  recounted   by  two  of   his  accomplices  and   a



            confidential informant whose son was in prison.  The argument



            fails.  It  was well  within the  jury's province  for it  to



            choose  to believe the testimony of Calderon's accomplices --



            in the face of his  cross-examination of their characters and



            motives -- and to disbelieve Calderon's version of the story.



            See  id.  "Credibility determinations are uniquely within the
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            jury's province,  and we defer  to the jury's verdict  if the



            evidence can  support  varying inferences."   Id.  (citations
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            omitted).



            Alleged Verdict Inconsistency
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                      Calderon also argues that his carjacking conviction



            cannot  stand  because  he  was  acquitted  of  the  firearms



            possession charges  and firearm  possession was  an essential



            element  of the  carjacking  offense.   In criminal  law "the



            Supreme Court has made it clear that verdict inconsistency in



            itself is not a sufficient basis for  vacating a conviction."







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            United  States v.  Lopez, 944  F.2d  33, 41  (1st Cir.  1991)
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            (citing United States v. Powell, 469 U.S. 57 (1984), and Dunn
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            v. United States, 284 U.S. 390 (1932)).
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                      This Court explained in Lopez:
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                      Verdict inconsistency  does not  indicate

                      that the government necessarily failed to

                      prove an  essential element  of its  case

                      beyond  a  reasonable  doubt.  .  . .  We

                      cannot  necessarily  assume[]   that  the

                      acquittal . . . was proper -- the one the

                      jury  really   meant.    It   is  equally

                      possible  that  the  jury,  convinced  of

                      guilt, properly reached its conclusion on

                      [one] offense, and  then through mistake,

                      compromise,  or  lenity,  arrived  at  an

                      inconsistent  conclusion  on  the [other]

                      offense.    As  long  as  the  trial  and

                      appellate   courts   are   convinced   on

                      independent   review   that   there   was

                      sufficient evidence to sustain a rational

                      verdict  of  guilt  beyond  a  reasonable

                      doubt,   the   defendant    is   properly

                      protected against  any risk  of injustice

                      resulting from jury irrationality.



            Id. (citations  and internal  quotations  omitted).   Because
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            Calderon's conviction was  supported by sufficient  evidence,



            the challenge based on alleged verdict inconsistency fails.







                      Affirmed.
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