United States v. De Jesus-Viera , 655 F.3d 52 ( 2011 )

United States Court of Appeals
For the First Circuit
No. 10-1365
UNITED STATES OF AMERICA,
Appellee,
v.
RAMÓN DE JESÚS-VIERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Robert Herrick for defendant-appellant.
Luke Cass, Assistant United States Attorney, with whom Nelson
Pérez-Sosa, Chief, Appellate Division, and Rosa Emilia Rodriguez-
Velez, United States Attorney, were on brief for appellee.
August 24, 2011
LYNCH, Chief Judge. United States Customs and Border
Patrol (CBP) officers seized over two kilograms of heroin and
ninety-six kilograms of cocaine from Ramón De Jesús-Viera's vehicle
during a border search conducted upon De Jesús-Viera's return to
Puerto Rico from the Dominican Republic. A jury convicted De
Jesús-Viera on one count of knowingly and intentionally possessing
heroin and cocaine with intent to distribute in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A) and one count of knowingly and
intentionally importing to the United States heroin and cocaine in
violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A), (B). The
district court sentenced De Jesús-Viera to 188 months'
imprisonment.
De Jesús-Viera appeals, challenging both his conviction
and his sentence. He argues the district court erred in denying
his motion to suppress the evidence recovered from his vehicle, it
erred when it instructed the jury on a willful blindness theory,
and the evidence is insufficient to support his conviction. He
also argues the district court erred by denying his request for an
offense-level reduction for playing a minor role in the criminal
activity. See U.S.S.G. § 3B1.2(b).
We affirm the conviction and the sentence.
I.
Because De Jesús-Viera questions the sufficiency of the
evidence supporting his conviction, we relate the facts in the
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light most favorable to the verdict. See United States v.
DeCologero, 530 F.3d 36, 47 (1st Cir. 2008).
In the early morning hours of July 13, 2007, De Jesús-
Viera arrived in Mayagüez, Puerto Rico, on a car and passenger
ferry from Santo Domingo, Dominican Republic. CBP Officer Javier
Ruíz-Toro was working in the port's primary inspection area at the
time, and De Jesús-Viera presented him with a Puerto Rico driver's
license, birth certificate, and customs declaration card.
As is customary practice for CBP Officers, Ruíz-Toro
asked De Jesús-Viera questions to determine whether to permit his
entry or instead refer De Jesús-Viera to secondary inspection. In
response, De Jesús-Viera stated that he had been in the Dominican
Republic to visit friends for two weeks and had nothing to declare.
Ruíz-Toro asked De Jesús-Viera how long he had owned his vehicle,
a 1984 Chevrolet El Camino. De Jesús-Viera replied that he had
only recently purchased it. This raised Ruíz-Toro's suspicions
because, by training and experience, he knew that drug trafficking
organizations often registered vehicles in a driver's name
immediately before using that vehicle to import drugs. Ruíz-Toro
pressed further, inquiring as to whether De Jesús-Viera had made
any repairs to the vehicle, which De Jesús-Viera denied. During
this time, De Jesús-Viera's voice was trembling, his hands and legs
were shaking, he was sweating profusely, and he avoided eye
contact. De Jesús-Viera explained his demeanor by telling Ruíz-
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Toro that he had a hangover, but Ruíz-Toro did not believe him. In
light of De Jesús-Viera's demeanor and his vehicle's recent
registration, Ruíz-Toro referred him to secondary inspection.
CBP Officer Jorge Pitre, working in the secondary
inspection area, asked De Jesús-Viera about the duration and
purpose of his trip to the Dominican Republic. De Jesús-Viera said
he had been in the Dominican Republic for two weeks in order to
show off his new car, that he had not made any repairs to his car,
and that he did not have anything to declare from the Dominican
Republic. Pitre noticed that De Jesús-Viera avoided eye contact
and was slightly shaking during the questioning.
After questioning De Jesús-Viera, Pitre used a machine
that measures the density of an object when passed across the
surface of that object, a "buster," to inspect De Jesús-Viera's
vehicle. The buster's readings indicated that there was a dense
object beneath the floor of one part of the vehicle. Given the
density readings and De Jesús-Viera's nervousness, Pitre asked CBP
Officer Isidro Mercado to cross-interview De Jesús-Viera.
Mercado asked De Jesús-Viera about the purpose of his
trip, the amount of money he took to and from the Dominican
Republic, and whether he had made any repairs to his vehicle. De
Jesús-Viera responded that he had traveled with about $3,000 "to
spend . . . with girls," that he was returning with roughly $200,
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and that he had not made any vehicle repairs. Mercado observed De
Jesús-Viera shaking and found him to be nervous.
Officers Mercado and Pitre then visibly inspected the
interior and undercarriage of De Jesús-Viera's vehicle. They
opened the doors, pushed the seats forward, and saw a large speaker
box mounted in the rear. When the box was removed, the felt lining
underneath appeared "freshly done." Removing a portion of the
felt, the officers smelled a chemical odor that suggested an
adhesive agent had recently been used or the area had recently been
painted. This contradicted De Jesús-Viera's claim that he had not
made any repairs to the vehicle. Meanwhile, another officer
inspected its undercarriage, and informed the others that
"something is not right here," and that there was a bulge or
compartment underneath the area of the felt lining.
CBP Officer Luis Henríquez, who was present for the
inspection of the car, left and returned with a drug-sniffing dog
to do a canine inspection of the vehicle. The dog searched the
area and began scratching "very aggressively" at the portion of the
vehicle that the officers were now focused upon, signaling there
might be narcotics in that area. After obtaining permission from
their superiors to do so, the officers drilled into the compartment
which had been discovered on the underside of De Jesús-Viera's
vehicle so as to allow a fiberoptic cable to peer inside the
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compartment. It was the drilling into the undercarriage on which
the motion to suppress was based.
Once the officers removed the drill bit, they noticed
white powder on the bit's tip. The officers administered a field
test of the substance, and it tested positive for cocaine.
After placing De Jesús-Viera in custody, the officers
sawed open the hidden compartment and extracted sixty-three
packages. These packages were later determined to contain a total
of 2.12 kilograms of heroin and approximately 96 kilograms of
cocaine. They also discovered a device with exposed wires;
applying an electrical current to the wires caused the compartment
to open, and reversing the wires and applying a current caused the
compartment to shut. This type of device is commonly used in
vehicles that have been modified specifically to transport
contraband.
II.
De Jesús-Viera was charged with one count of possessing
with intent to distribute one kilogram or more of heroin and five
kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A), and one count of importing into the United States
one kilogram or more of heroin and five kilograms or more of
cocaine in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A), (B).
On October 4, 2007, De Jesús-Viera filed a motion to
suppress the narcotics evidence seized from his vehicle on the
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grounds that the drilling of the vehicle was not a routine border
search and that there was no reasonable suspicion to support the
non-routine search. The district court referred the motion to a
magistrate judge, who originally scheduled a suppression hearing
but later cancelled it. The magistrate judge determined that "the
defendant has been fully heard on his motion with the submissions
made, and that an evidentiary hearing is not required," and issued
a recommended ruling denying De Jesús-Viera's motion to suppress on
the grounds that the drilling qualified as a routine border search.
De Jesús-Viera moved for reconsideration of the
recommended ruling based on United States v. Flores-Montano, 541
U.S. 149 (2004), which he said left open the possibility that the
Fourth Amendment requires that some destructive property searches
at the border be supported by reasonable suspicion, and United
States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995), which held, without
the government's taking a contrary position, that the drilling into
a metal cylindrical container in that case was a non-routine
search. The magistrate judge issued a second recommended ruling on
December 19, 2007, rejecting De Jesús-Viera's arguments and denying
De Jesús-Viera's motion for reconsideration. The second
recommended ruling stated that any objections to it were due on
January 8, 2008, but De Jesús-Viera failed to make any objections.
The district court adopted the ruling on February 4, 2008, agreeing
that the CBP officers' drilling of De Jesús-Viera's vehicle
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qualified as a routine border search that did not require
reasonable suspicion.
The jury convicted De Jesús-Viera on both counts
following a four-day trial from September 22, 2008, to September
25, 2008. De Jesús-Viera filed a motion for judgment of acquittal,
Fed. R. Crim. P. 29, arguing that the evidence was not sufficient
to support his conviction, and a motion for a new trial, Fed. R.
Crim. P. 33, arguing procedural errors. The district court denied
De Jesús-Viera's motions.
A sentencing hearing was held on February 12, 2010. De
Jesús-Viera argued that he was entitled to a two-level reduction in
his offense level because he played a minor role in the offense.
See U.S.S.G. § 3B1.2(b). The district court found De Jesús-Viera
did not qualify for the two-level role adjustment, setting his
offense level at 36 and yielding a guideline range of 188 to 235
months. The court imposed a sentence of 188 months for each count,
to be served concurrently.
III.
A. Denial of De Jesús-Viera's Motion to Suppress
We first reject De Jesús-Viera's challenge to the
district court's denial of his motion to suppress the narcotics
evidence seized from his vehicle.
By failing to object to the magistrate judge's
recommended ruling, De Jesús-Viera has waived his Fourth Amendment
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claim. See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st
Cir. 2008). The magistrate judge's December 19, 2007, recommended
ruling explicitly advised the parties that D.P.R. Civ. R. 72(d)
required that any objections be made within ten days of receiving
the ruling,1 and that failure to do so would preclude further
appellate review.2
De Jesús-Viera also argues the denial of his suppression
motion constitutes plain error. See Fed. R. Crim. P. 52(b). The
four-part test for plain error requires that De Jesús-Viera show
(1) there is an error; (2) the error is plain or obvious; (3) the
error "'affected [De Jesús-Viera's] substantial rights, which in
the ordinary case means' it 'affected the outcome of the district
court proceedings;'" and (4) "the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings."
United States v. Gerhard, 615 F.3d 7, 22 (1st Cir. 2010)
(alteration in original) (quoting United States v. Marcus, 130 S.
1
In 2009, 28 U.S.C. § 636(b)(1) was amended to allow
parties fourteen days, not ten, to file objections to a magistrate
judge's recommended ruling. See id. Subsequently, D.P.R. Civ. R.
72(d) was amended to also allow fourteen days for objections.
2
De Jesús-Viera concedes that he failed to properly object
to the recommended ruling. Nonetheless, he urges us to review the
district court's denial of his suppression motion under a de novo
standard of review, reasoning that his motion for reconsideration
of the magistrate judge's first recommended ruling "clearly
expressed his position" that the CBP officers needed reasonable
suspicion to justify drilling into his vehicle. We reject the
argument.
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Ct. 2159, 2164 (2010)) (internal quotation marks omitted). He has
failed to make such a showing.
The district court's denial of the suppression motion was
not error at all because there was more than reasonable suspicion
to search the vehicle. The district court concluded that the
drilling into the hidden compartment in the undercarriage of De
Jesús-Viera's vehicle was a routine border search that did not
require reasonable suspicion, see Flores-Montano, 541 U.S. 149, and
distinguished our holding in Robles on its facts. We do not decide
whether the search was a routine border search. Even assuming the
drilling was non-routine, it was supported by ample reasonable
suspicion. See Robles, 45 F.3d at 5-6 (non-routine border search
constitutional because supported by reasonable suspicion); id. at
5 ("We are not bound by the district court's reasoning, and will
affirm if the ruling below is supported by any independently
sufficient ground.").
"A finding of reasonable suspicion requires 'a
particularized and objective basis for suspecting the person
stopped of criminal activity,'" United States v. Espinoza, 490 F.3d
41, 47 (1st Cir. 2007) (quoting Ornelas v. United States, 517 U.S.
690, 696 (1996)) (internal quotation marks omitted), which must be
"grounded in specific and articulable facts," id. (quoting United
States v. Hensley, 469 U.S. 221, 229 (1985)) (internal quotation
marks omitted). The record shows an escalating sequence of events
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in which each step taken by the CBP officers led reasonably to the
next.3 That sequence was: (1) De Jesús-Viera was visibly nervous
and avoided eye contact with each of the officers in the chain; (2)
he told the officers that he had recently purchased his vehicle, a
recognized indicia the vehicle may have been used for drug
trafficking; (3) De Jesús-Viera gave inconsistent answers to the
CBP officers when cross-interviewed, telling one officer the
purpose of his trip to the Dominican Republic was to visit friends,
telling a second it was to show off his car, and telling a third it
was "to spend [$3000] . . . with girls;" (4) the buster scan
yielded abnormal readings indicating dense objects underneath the
floor of the vehicle; (5) a search of the car's interior found
recent alterations or repairs, contrary to De Jesús-Viera's
statement that he had not made any recent repairs; (6) an agent's
view of the underside of the vehicle showed an abnormal bulge
underneath the area where the alterations to the car were found;
and finally, (7) a canine inspection of the vehicle indicated the
likely presence of narcotics. The CBP officers had an ample basis
to reasonably suspect that De Jesús-Viera was engaged in criminal
3
Because the district court made no findings of fact in
denying De Jesús-Viera's motion to suppress, we review the record
de novo. See United States v. Robles, 45 F.3d 1, 5 (1st Cir.
1995).
Under plain error review, we may consider the entire record in
assessing whether the district court's decision affected De Jesús-
Viera's substantial rights, not just the facts available to the
district court at the time it ruled upon the suppression motion.
See United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir. 2004).
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activity that justified drilling into the secret compartment. De
Jesús-Viera's Fourth Amendment claim fails.4
B. Willful Blindness Jury Instruction
De Jesús-Viera next argues the district court erred by
instructing the jury that, in deciding whether De Jesús-Viera acted
knowingly, the jury could "infer that the defendant had knowledge
of a fact if [it found] that he deliberately closed his eyes to a
fact that otherwise would have been obvious to him." Because De
Jesús-Viera did not object to this instruction at trial, our review
is for plain error. See Estate of Keatinge v. Biddle, 316 F.3d 7,
16 (1st Cir. 2002). There was no error.
"A willful blindness instruction is appropriate if (1) a
defendant claims a lack of knowledge, (2) the facts suggest a
conscious course of deliberate ignorance, and (3) the instruction,
4
We also reject De Jesús-Viera's argument that the
district court erred by ruling on the motion to suppress without
holding an evidentiary hearing. On appeal, De Jesús-Viera raises
this argument in a cursory fashion, and it is waived. See Cortés-
Rivera v. Dep't of Corr. & Rehab., 626 F.3d 21, 26 (1st Cir. 2010).
Even if it were not waived, the argument would fail. In
reviewing a claim that a defendant was erroneously deprived of an
evidentiary hearing, we ask whether the defendant made a sufficient
threshold showing that material facts were in doubt. United States
v. Vilches-Navarrete, 523 F.3d 1, 15 (1st Cir. 2008). "The
district court has considerable discretion in determining the need
for, and the utility of, evidentiary hearings, and we will reverse
the court's denial of an evidentiary hearing in respect to a motion
in a criminal case only for manifest abuse of that discretion."
United States v. Allen, 573 F.3d 42, 50-51 (1st Cir. 2009) (quoting
United States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996))
(internal quotation marks omitted). That standard has not been met
here.
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taken as a whole, cannot be misunderstood as mandating an inference
of knowledge." United States v. Azubike, 564 F.3d 59, 66 (1st Cir.
2009). De Jesús-Viera's defense hinged on a lack of knowledge of
the drugs in his vehicle.
As an alternative to actual knowledge, the facts could be
construed to suggest a conscious course of deliberate ignorance --
that the defendant heavily suspected what he was driving was a car
with hidden narcotics.
As to the third element, the instruction stated:
In order to infer knowledge, you must
find that two things have been established:
First, that the defendant was aware of a high
probability of the existence of the drugs;
second, that the defendant consciously and
deliberately avoided learning of that fact.
That is to say, the defendant willfully made
himself blind to that fact.
It is entirely up to you to determine
whether he deliberately closed his eyes to the
fact and if so, what inference, if any, should
be drawn. However, it is important to bear in
mind that mere negligence or mistake in
failing to learn the fact is not sufficient.
There must be a deliberate effort to remain
ignorant of the fact.
The court's instruction did not create the risk that the jury would
employ a negligence standard; the court explicitly instructed that
finding De Jesús-Viera acted negligently was not enough.
Further, as discussed below, there was considerable
evidence that De Jesús-Viera had actual knowledge of the illegal
narcotics in his vehicle.
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C. Sufficiency of the Evidence
De Jesús-Viera argues the government failed to adequately
prove that he acted "knowingly and intentionally," an essential
element under 21 U.S.C. §§ 841(a)(1) or 952(a).
"[W]e must affirm the conviction if after de novo review
of the evidence taken in the light most favorable to the
government, we conclude that a rational factfinder could find that
the government proved the essential elements of its case beyond a
reasonable doubt." United States v. Marin, 523 F.3d 24, 27 (1st
Cir. 2008).
Viewed in the light most favorable to the government, the
record contains ample evidence to support De Jesús-Viera's
convictions. The jury could have inferred that De Jesús-Viera
acted knowingly and intentionally from testimony that the drugs
were found in a car that De Jesús-Viera both owned and was driving,
notwithstanding the fact the drugs were concealed in a hidden
compartment. See United States v. Barnes, 890 F.2d 545, 549 (1st
Cir. 1989) ("[K]nowledge of possession may . . . be inferred by
demonstrating dominion and control over the area where contraband
is found."); cf. United States v. Aponte, 619 F.3d 799, 804 (8th
Cir. 2010) ("[D]efendant's ownership and control over a vehicle are
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sufficient to infer possession of drugs therein -- even if the
drugs are concealed.").5
The jury also could have inferred that De Jesús-Viera
knew of the presence of the illegal narcotics in his car from the
sheer amount of drugs the CBP officers found. The jury heard
testimony that CBP officers found 2.12 kilograms of heroin and 96
kilograms of cocaine in the car and that in July 2007, the street
value of a kilogram of heroin was at least $55,000 and the street
value of a kilogram of cocaine was at least $14,000. The jury
could have drawn the inference that De Jesús-Viera knew that the
over $1.45 million worth of drugs were in his car based on its
common sense.
Testimony regarding De Jesús-Viera's nervous behavior --
his trembling voice, his shaking hands and legs, his profuse
sweating, his avoiding eye contact with the CBP officers -- was
also supporting evidence of guilt.
De Jesús-Viera urges that his convictions should be
reversed because, he argues, the facts of his case are similar to
5
De Jesús-Viera argues that knowledge that the car
contained illegal drugs should not be attributed to him based on
his ownership of the car because "[g]overnment witnesses
acknowledged that [he] likely owned the car in name only because
contraband smugglers often register a car in a third-party's name
to enable the third-party to leave and enter the country." What De
Jesús-Viera fails to mention is that CBP Officer Ruíz-Toro told the
jury that the practice described is one characteristic of "drug
trafficking organizations" specifically, not contraband smugglers
generally. De Jesús-Viera's ownership of the car "in name only" is
evidence that supports his conviction.
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those in United States v. Pérez-Meléndez, 599 F.3d 31 (1st Cir.
2010), where "[i]n light of the specific facts of [that] case" we
held that the evidence supporting a jury verdict was insufficient.
Id. at 47. De Jesús-Viera is mistaken: Pérez-Meléndez is
distinguishable from his case.
In Pérez-Meléndez, two defendants, commercial truck
drivers, were convicted in a jury trial of aiding and abetting each
other to possess and distribute cocaine. Id. at 37, 38. The
defendants were the driver and passenger of a truck carrying six
wrapped pallets of reams of paper in which federal agents
discovered hidden forty kilograms of cocaine. Id. at 34. Although
the defendants offered inconsistent statements regarding whether
the truck was rented (and who rented it) or whether it was borrowed
from a friend, it was not disputed that neither of the defendants
owned the truck. Id. at 35, 36. The defendants had picked up the
shipment of paper, which had originated in the Dominican Republic,
from "an authorized company in Puerto Rico engaged in the lawful
business of transporting shipments from, among other places, the
Dominican Republic and which was not charged with any wrongdoing."
Id. at 45. The shipping company provided the defendants "with
documentation indicating (1) that the Customs and Treasury
departments had provided clearances on the shipment and (2) what
that shipment (supposedly) contained." Id.-16-
Pérez-Meléndez is easily distinguished from the present
case. The defendants in Pérez-Meléndez did not own the truck or
the reams of paper in which the drugs were hidden; De Jesús-Viera
owned the car in which CBP agents found the cocaine and heroin.
The drugs in Pérez-Meléndez were found hidden amongst a shipment
the defendants were paid by a legitimate freight company to pick up
and deliver; De Jesús-Viera was engaged in no such seemingly
legitimate activity and the drugs were found in his personal
vehicle. The court in Pérez-Meléndez observed that the defendants
drove "a common vehicle unequipped with weaponry or sophisticated
technology," id. at 45, and that there was "no evidence that
[defendants] themselves resisted or otherwise tried to conceal the
true nature of the shipment," id. at 46; here, De Jesús-Viera's car
had been modified to include a secret compartment that operated
electronically to conceal contraband.
D. Offense Level Reduction for Minor Role
Finally, De Jesús-Viera argues the district court erred
in denying his request for a two-level downward adjustment in his
sentence based on his minor role in the offense. See U.S.S.G.
§ 3B1.2(b). The defendant has not satisfied his burden of showing
that finding is clearly erroneous. See United States v. Bravo, 489
F.3d 1, 11 (1st Cir. 2007).
The minor role guideline, U.S.S.G. § 3B1.2(b), "is not
applicable unless more than one participant was involved in the
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offense," see U.S.S.G. § 3B1.2 cmt. n.2, and De Jesús-Viera had the
burden of demonstrating that there were other, more culpable
participants in the offense of conviction, see United States v.
Rosa-Carino, 615 F.3d 75, 81 (1st Cir. 2010). The district court
based its finding largely on the fact that De Jesús-Viera had
failed to meet that burden: he offered no evidence that any other
individuals participated in the criminal activity of conviction.
De Jesús-Viera's only challenge to the court's
determination is that "the record could only support a finding that
[he] was an expendable cog in a sophisticated trafficking
operation." But it was not clearly erroneous for the district
court to reject that unsupported assertion.
IV.
The judgment of the district court is affirmed.
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