United States v. Valasquez ( 1996 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________
    No. 95-2255

    UNITED STATES OF AMERICA,
    Appellee,

    v.
    JUAN SEPULVEDA,

    Defendant, Appellant.
    ____________________

    No. 95-2256
    UNITED STATES OF AMERICA,

    Appellee,
    v.

    JUAN VELASQUEZ,
    Defendant, Appellant.

    ____________________
    APPEALS FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________

    ____________________
    Before

    Boudin, Circuit Judge, _____________
    Bownes, Senior Circuit Judge, ____________________

    and Lynch, Circuit Judge. _____________
    ____________________

    William T. Murphy, by Appointment of the Court, for appellant __________________
    Juan Sepulveda.
    Stephen J. Weymouth, by Appointment of the Court, for appellant ___________________
    Juan Velasquez.
    Sheldon Whitehouse, United States Attorney, with whom Stephanie __________________ _________
    S. Browne, Assistant United States Attorney, was on brief for the __________
    United States.

    ____________________

    December 30, 1996
    ____________________

















    BOUDIN, Circuit Judge. On February 14, 1995, acting on _____________

    an informant's tip that two Hispanic males were selling crack

    through a side window, police detectives in Providence, Rhode

    Island staked out the designated first-floor apartment. The

    officers saw an unusual number of visitors going to and from

    the side of the building, remaining only briefly. After

    watching for an hour, an undercover detective approached one

    side window, was directed to a different side window partly

    covered with plywood and purchased two "rocks" of cocaine

    base ("crack"), paying with two marked $20 bills.

    The police then forcibly entered the apartment and found

    four men inside, including appellants Juan Sepulveda and Juan

    Velasquez. The apartment was unfurnished, with no signs of

    personal drug use by the occupants. The undercover detective

    identified Velasquez as the seller. Sepulveda's pants

    pockets contained plastic bags of powder cocaine and of

    crack, and a bundle of cash (including the two marked $20

    bills from the earlier purchase). The police also found a

    sawed-off rifle which proved to be unregistered.

    Both Velasquez and Sepulveda were charged with a panoply

    of drug and weapons offenses. The case proceeded to trial in

    June 1995 under a redacted five-count indictment: count I

    charged the defendants with conspiracy to distribute, and to

    possess with intent to distribute crack. 21 U.S.C.

    841(a)(1). Counts II and III, respectively, alleged



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    distribution of crack and possession of crack with intent to

    distribute. Id. Count IV charged the use of a firearm ___

    during a drug trafficking crime, 18 U.S.C. 924(c)(1), and

    count V alleged possession of an unregistered sawed-off

    rifle. 26 U.S.C. 5841, 5861(d), 5871. After a four-day

    trial, the jury found both defendants guilty on all five

    counts.

    In October 1995, the district judge sentenced Sepulveda

    to 70 months' imprisonment on counts I, II, III, and V, and

    Velasquez to 78 months on those same counts. Both defendants

    were also given a mandatory consecutive 10-year sentence

    under count IV; but the government and the defendants now

    stipulate that the conviction and sentence under count IV

    have been undermined by Bailey v. United States, 116 S. Ct. ______ _____________

    501 (1995). The appeals are directed to the remaining four

    counts.

    I.

    We begin with the more substantial of the challenges to

    the convictions. First, Sepulveda asserts that the search of

    his person by police officers immediately prior to his arrest

    was unlawful because it was executed without a warrant or

    probable cause and exceeded the lawful scope of a protective

    frisk for weapons. Accordingly, Sepulveda says that the

    drugs and cash discovered in his pockets should have been

    suppressed, and that the remaining evidence is not enough to



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    support his conviction. The government argues that Sepulveda

    waived this issue by not raising it in the district court.

    At a suppression hearing on June 16, 1995, the district

    court ruled that the apartment search was based on probable

    cause and that exigent circumstances--namely, the risk that

    contraband might be destroyed--justified entry without

    awaiting a warrant. Whether Sepulveda separately disputed

    the search of his person, and whether the district court

    intended its reasoning to cover this search as well, is not

    entirely clear. Since the facts are undisputed and we review

    probable cause decisions de novo, Ornelas v. United States, __ ____ _______ _____________

    116 S. Ct. 1657, 1663 (1996), the easiest course is for us to

    decide ourselves whether the search of Sepulveda himself was

    valid.

    The police had ample cause to arrest Velasquez, but

    probable cause must exist for each person arrested, and "mere

    propinquity to others independently suspected of criminal

    activity does not, without more, give rise to probable cause

    to search that person." Ybarra v. Illinois, 444 U.S. 85, 91 ______ ________

    (1979). The government does not argue that a mere protective

    frisk of Sepulveda would have produced the money as well as

    the drugs, so the question is whether the circumstances

    provided probable cause to arrest--and therefore to search--

    Sepulveda. United States v. Martinez-Molina, 64 F.3d 179, _____________ _______________

    726 (1st Cir. 1995).



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    The apartment in this case was unfurnished and partly

    boarded up. There is no indication that it was used for any

    purpose other than distribution of drugs. The numerous walk-

    up sales the police had observed confirmed that the apartment

    was being used for drug distribution and strongly suggested

    that everyone in the apartment knew of this activity. See ___

    Martinez-Molina, 64 F.3d at 729. It is only a short step to _______________

    suppose that those present in the otherwise vacant apartment

    were probably drug dealers or purchasers.

    The D.C. Circuit encountered similar facts in United ______

    States v. Holder, 990 F.2d 1327, 1329 (D.C. Cir. 1993). ______ ______

    After entering an apartment and finding evidence of drug

    distribution, the police arrested the individuals found

    inside. The court upheld the arrest of a defendant who

    claimed to be a bystander, saying that the open nature of the

    drug sale activity in the apartment gave rise to a reasonable

    inference that each occupant was involved in the drug trade--

    either as an accomplice in the drug sales or as a customer.

    Id. at 1329. ___

    To be sure, Sepulveda might have been an innocent

    visitor. But probable cause requires only that the police

    have "reasonable grounds to believe" that Sepulveda had

    committed the crime. See United States v. Melvin, 596 F.2d ___ _____________ ______

    492, 495 (1st Cir. 1979). The facts of this case persuade us

    that there was ample reason for the police to think that



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    Sepulveda was engaged in a felony. Given probable cause

    prior to the search, it is irrelevant that the formal arrest

    may have followed the search. Rawlings v. Kentucky, 448 U.S. ________ ________

    98, 111 & n.6 (1980).

    Second, Velasquez argues that the district court erred

    in the jury instructions by failing to tell the jury,

    according to his brief on appeal, "that it could not base a

    conviction of possession with intent to distribute cocaine

    base under count III on the same conduct that formed the

    basis for the distribution count (Count II)." The government

    says (correctly) that Velasquez did little to explain his

    "concern" to the district court, making no request for any

    specific curative language. The objection was as follows.

    I have a concern as it deals with the charge of
    possession with intent to sell--distribute. The
    Court knows, based on the evidence that it is
    alleged that there was a quantity of contraband
    allegedly in Mr. Sepulveda's pocket. I am
    concerned just based on the charge as it pertains
    to the definition that the Court instructed, as it
    pertains to the possession with intent to
    distribute, that the jury may in fact confuse that
    with the delivery. In other words, your Honor, I'm
    concerned that by virtue of the fact that we have a
    delivery charge and we have a possession with
    intent to distribute charge, I'm concerned that the
    jury may confuse them or think that they are in
    fact one and the same.

    A request for specific curative language may sometimes

    be needed to convey the substance of a requested addition or

    correction to the charge, and the absence of a specific

    request may prove fatal. E.g., Parker v. Nashua, 76 F.3d 9, ____ ______ ______



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    12 (1st Cir. 1996). Still, one can imagine cases where some

    other formula might, in context, convey all of the needed

    information (e.g., "I object to the definition of ____

    ``possession' because . . . ."). Here, based on the district

    judge's response, we think it is unclear that the district

    judge understood the objection to be the "same conduct" claim

    that Velasquez is now pressing on appeal.

    In any event, to the extent we understand the objection

    now, it appears to us to be ill-founded. Explaining why

    requires some background. Under Blockburger v. United ___________ ______

    States, 284 U.S. 299 (1932), a defendant can be convicted of ______

    two differently defined offenses, based on the same core of

    facts, so long as each offense requires an element that the

    other does not. Id. at 304. The offense of distribution ___

    obviously does require an element not required for the crime

    of possession with intent, namely, the act of distribution.

    It is possible--albeit unusual--to be guilty of

    distribution of a drug without also possessing it with intent

    to distribute. Someone who participates in a drug transfer-

    -e.g., as a broker or armed guard--can be liable for ____

    distribution without ever possessing the drugs. See, e.g., ___ ____

    United States v. Brunty, 701 F.2d 1375, 1381 & n.16 (11th _____________ ______

    Cir. 1983). While "possession" is certainly helpful in

    proving distribution, it is technically not a necessary

    element. United States v. Tejada, 886 F.2d 483, 490 (1st ______________ ______



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    Cir. 1989). Compare 2 Sand et al., Modern Federal Jury _______ __ __ ____________________

    Instructions, 56-24 to 56-26, 56-4 (1992). ____________

    But satisfying Blockburger has not wholly satisfied the ___________

    circuit courts. Where the evidence shows only that a

    defendant handed over a packet of drugs, some courts have

    balked at the idea that Congress intended to allow a

    conviction both for possession with intent and for

    distribution. E.g., United States v. Meredith, 824 F.2d ____ ______________ ________

    1418, 1426 (4th Cir. 1987). Other circuits have said that

    conviction on both counts is permitted, but that a defendant

    may only be sentenced on one. See, e.g., United States v. ___ ____ ______________

    Palafox, 764 F.2d 558, 562 (9th Cir. 1985). _______

    By contrast, this court, following the Fifth Circuit,

    United States v. Zabaneh, 837 F.2d 1249, 1257 (5th Cir. ______________ _______

    1988), has said that "the offenses merge only where the

    distribution itself is the sole evidence of possession, or

    where possession is shown to exist only at the moment of

    distribution," United States v. Rodriguez-Cardona, 924 F.2d ______________ _________________

    1148, 1159 (1st Cir. 1991), and we have also made clear that

    a defendant could be convicted of both offenses, with respect

    to the same drug, so long as there was proof that he ____

    possessed the drug (with intent to distribute) at some point

    earlier than the distribution itself. Tejada, 886 F.2d at ______

    490.





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    It is doubtful that the game (reflected in these various

    distinctions drawn by the circuits) is worth the candle where

    both offenses are prosecuted at the same time. In most

    configurations, the guidelines will assure that the sentence

    is the same for one or both, save for the $50 mandatory

    assessment. U.S.S.G. 3D1.1, 3D1.3 (Nov. 1994). And so

    far as we can tell, only the $50 assessment is at issue here.

    But based on this stake alone, Rutledge v. United States, 116 ________ _____________

    S. Ct. 1241, 1247 (1996), prevents us from treating the issue

    as moot.

    In any event, the disagreement between the circuits is

    irrelevant here, as is the narrower concern that prompted

    this court in Tejada and Rodriguez-Cardona. Velasquez was ______ _________________

    plainly shown to have distributed two rocks that he sold

    through the window to the detective. It is scarcely less

    clear that the jury regarded Velasquez as constructively

    possessing with intent to distribute quite separate packages

    of crack that Sepulveda had in his pocket. Thus, Velasquez

    was guilty of both crimes based upon different drugs.

    The constructive possession finding is inference but

    almost inescapable. By convicting Sepulveda of distribution

    and finding both defendants liable of possessing the same

    gun, the jury made clear its view that both men were partners

    in the same criminal enterprise, a view borne out not only by

    circumstances but by Sepulveda's possession of the marked



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    bills handed to Velasquez through the window. On this basis,

    it follows that Velasquez was also liable on the possession

    charge for the crack carried by Sepulveda.

    II.

    Velasquez challenges his sentence on several grounds.

    The most important ground concerns the treatment of the cash

    found in Sepulveda's pockets; the district court treated the

    entire amount as proceeds from the sale of crack. Velasquez

    argues that the cash should not have been converted into an

    equivalent quantity of drugs at all and, if converted, should

    have been treated as proceeds of powder cocaine.

    When the police searched Sepulveda, they discovered in

    his pockets $335 in cash, five plastic bags of crack and

    three plastic bags of powder cocaine. The cash included the

    two marked $20 bills that the detective had exchanged for two

    "rocks" of crack, leaving $295. The probation officer said

    that this remaining amount likely represented the proceeds of

    prior crack sales but, to give "the benefit of the doubt" to

    the defendants, recommended that the cash be converted into

    an equivalent of powder cocaine rather than crack.

    The government objected vigorously. It argued that the

    convictions were for crack, that powder cocaine counts had

    been dropped (because the amount of powder did not warrant an

    inference of possession with intent), and that "all of the

    facts" pointed to crack distribution and none to powder



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    cocaine. The probation officer replied that there was

    "perhaps[] a greater likelihood that the seized money

    represented the proceeds from prior sales of crack cocaine";

    but the presence of three bags of powder persuaded the

    probation officer to stand by her earlier recommendation.

    At the sentencing, the government pressed its objection,

    arguing that the $295 should be translated into crack, and

    the district court sided with the government. As crack is

    punished much more seriously than cocaine powder, see United ___ ______

    States v. Armstrong, 116 S. Ct. 1480, 1492 (1996) (Stevens, ______ _________

    J., dissenting), the effect of the court's ruling (based on

    calculations that we need not describe because they are not

    disputed) was to increase the base offense level on the drug

    counts from 18 to 26. The district court then sentenced

    Velasquez to the minimum permitted by the guideline range for

    level 26 and his criminal history category of III, namely, 78

    months.

    There is nothing to Velasquez' primary objection in the

    district court, renewed on appeal, that the $295 should not

    be converted into drugs at all. A reasonable factfinder

    could conclude that it was more likely than not that

    Sepulveda and Velasquez were partners in a drug operation,

    Sepulveda holding the drugs and money and Velasquez

    completing the transactions at the side window. The co-

    mingling of the $40 in marked bills, and the lack of any



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    other obvious source for the $295, made it reasonable to

    attribute the money to drug dealing properly included in the

    sentence. See United States v. Gerante, 891 F.2d 364, 368-69 ___ _____________ _______

    (1st Cir. 1989).

    The more difficult question is whether the $295 should

    all be treated as proceeds of crack transactions or should be

    treated as powder, which Velasquez now urges as a fall-back

    position. The government says that Velasquez did not urge

    this alternative in the district court where, needless to

    say, his main argument was against treating the money as drug

    proceeds at all. But the alternative of treating the money

    as powder sales was presented by the presentence report and

    squarely rejected by the district judge in favor of treating

    the money as proceeds from crack.

    In arguing for the probation officer's solution,

    Velasquez invokes our own admonition that courts must "err on

    the side of caution" in choosing among a number of plausible

    estimates of drug quantity. United States v. Jackson, 3 F.3d _____________ _______

    506, 510 (1st Cir. 1993); United States v. Sklar, 920 F.2d _____________ _____

    107, 113 (1st Cir. 1990). But this "caution" has a more

    precise office that is best understood by quoting directly

    from the opinion from which Jackson and Sklar borrowed the _______ _____

    quoted language:

    If the exact amount cannot be determined, an
    estimate will suffice, but here also a
    preponderance of the evidence must support the
    estimate. Thus when choosing between a number of


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    plausible estimates of drug quantity, none of which _____________
    is more likely than not the correct quantity, a _________________________________________________
    court must err on the side of caution.

    United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990) ______________ ______

    (emphasis added).

    Walton's caution would apply if (for example) the ______

    district court had found that the $295 might represent sales

    of crack or, to an equal likelihood, might represent sales of

    both crack and powder. But here the district court found

    that the money all represented crack sales. The court was

    obviously making a submerged judgment about probabilities

    (only the defendants know for sure); but it plainly thought

    that the finding it made was more likely than not to be true.

    The standard of review on this issue is "clear error."

    Gerante, 891 F.2d at 368. Based on the facts already _______

    recited, we think there is no way to describe the district

    court's determination as irrational, highly speculative, or

    without a basis in the evidence. The money was found in the

    hands of persons who had been identified in advance as crack

    dealers, had crack in their possession and had just completed

    a sale to the police of crack. There was no direct evidence

    of powder sales at all.

    The district court could certainly have taken a

    different view of the matter. The defendants did have three

    bags of powder cocaine, suggesting that they might be in both

    lines of business. And, while the government pointed to the



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    smallness of the amount of powder, conflicting inferences of

    this kind are matters to be weighed by the trier of fact.

    But that is precisely the point: it was for the district

    court to make these judgments and absent a clear mistake, we

    have no warrant to intervene.

    III.

    The defendants make several other claims that

    require no detailed discussion. Velasquez says that the

    evidence was inadequate to support convictions on any of the

    remaining counts and Sepulveda makes the same claim as to

    count V. The facts already recounted make it plain that

    there was ample evidence to convict both defendants on the

    drug counts, and we are not going to waste time on this

    issue.

    The evidence as to the weapon, which underpinned the two

    gun counts, has not been recounted but was also sufficient.

    Inside the apartment, the police found an opening in the

    ceiling through which the butt of a gun could be seen. The

    gun proved to be a fully operational sawed-off rifle. The

    location was within an arm's length of the barricaded window

    through which the sale had been made to the detective, and

    the butt could be reached easily by someone of average height

    standing inside the apartment at the window.

    Given the circumstances--the vacant apartment, the

    actual sale, the additional drugs carried by Sepulveda--a



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    reasonable jury could easily infer that the apartment was the

    base used by Sepulveda and Velasquez to retail their drugs.

    From the placement of the weapon, it could also be reasonably

    inferred that the defendants kept it there, well positioned

    and available, for potential use in overawing an unruly

    customer or confronting a rival dealer. In short, the weapon

    could be attributed to the defendants and, coupled with

    evidence that the rifle was unregistered, this was enough to

    convict. See U.S.C. 5841, 5861(d), and 5871. ___

    The same evidence was also used to convict the

    defendants on the "use or carry" charge under U.S.C.

    924(c)(1). As to this count, the government's theory, and

    the jury instructions, were based on our pre-Bailey decisions ______

    which defined "use" more broadly than is now permissible.

    The government and defendants have already stipulated that

    the convictions of both defendants must be reversed under

    Bailey, together with the mandatory consecutive sentence ______

    imposed on this count. We agree.

    The convictions and sentences on counts I-III and V are

    affirmed, the convictions and sentences on count IV is ________

    reversed, and the matter is remanded to the district court ________ ________

    for proceedings consistent with this decision.

    It is so ordered. ________________







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