United States v. Guerrier

United States Court of Appeals
For the First Circuit
No. 10-2315
UNITED STATES OF AMERICA,
Appellee,
v.
VIGGENS GUERRIER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Stephen J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Leslie W. O'Brien for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
December 22, 2011
THOMPSON, Circuit Judge.
Preface
Around midnight on a January evening in 2009, Viggens
Guerrier and Christian German ducked into a crack house at 371
Manchester Street in Manchester, New Hampshire, looking for Dwight
Bennett, a drug dealer who made a living taking crack from New York
to New Hampshire for sale there.1 They found him, and an irate
German then robbed him of $1,500 and 10 grams of crack at gunpoint
while Guerrier stood guard at the crack-house door. The backstory
behind this – the "CliffsNotes" version, at least – is easily told.
German was himself a drug dealer of some notoriety, and he and his
drug-pushing partner, Jay Galeano, had agreed to let Bennett sell
crack out of that house to their clients, provided they got a piece
of the action.2 But Bennett did not pay up, which is why German
grabbed his old friend Guerrier (for extra muscle, just in case)
and strode into the crack house that fateful night, with a gun at
the ready.
Law enforcement later collared the duo, and, with
German's help, a jury convicted Guerrier of conspiring to violate
the Hobbs Act (sometimes called the "Act," for easy reading) – a
1
We narrate the trial evidence in the light most flattering
to the prosecution's theory of the case, see, e.g., United States
v. Manor, 633 F.3d 11, 12, 13-14 (1st Cir. 2011), skipping over
nonessentials.
2
Jay Galeano's name is spelled several ways in the record, so
we use the spelling that the parties use in their briefs.
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statute that (among other things) makes a federal crime out of
robbery or conspiracy to rob that "in any way or degree obstructs,
delays, or affects" interstate or international commerce. See 18
U.S.C. § 1951(a)-(b). Guerrier now appeals his conviction (but not
his sentence of 6½ years in prison plus 3 years of supervised
release), raising four issues, none of which requires reversal.
Sufficiency of the Indictment
Citing Federal Rule of Criminal Procedure 12(b), Guerrier
moved pretrial to dismiss the indictment. Prosecutors had produced
no evidence during discovery that his acts had affected interstate
commerce, leaving them unable to satisfy the Act's jurisdictional
prerequisite – or so he claimed. The district judge made quick
work of Guerrier's motion, denying it in a margin order. And our
de novo review of this legal issue, see, e.g., United States v.
Lopez-Lopez, 282 F.3d 1, 9 (1st Cir. 2002), convinces us that the
judge got the matter exactly right.
When grading an indictment's sufficiency, we look to see
whether the document sketches out the elements of the crime and the
nature of the charge so that the defendant can prepare a defense
and plead double jeopardy in any future prosecution for the same
offense. See, e.g., United States v. Eirby, 262 F.3d 31, 37-38
(1st Cir. 2001). Guerrier does not suggest that his indictment
flunks this test. And his attempt to sink a facially valid
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indictment with a motion to dismiss that targets the strength of
the government's evidence misfires.
What counts in situations like this are the charging
paper's allegations, which we must assume are true. See, e.g.,
United States v. Bohai Trading Co., 45 F.3d 577, 578 n.1 (1st Cir.
1995). Consistent with that rule, courts routinely rebuff efforts
to use a motion to dismiss as a way to test the sufficiency of the
evidence behind an indictment's allegations, see, e.g., United
States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009); United States
v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006); United States v.
Salman, 378 F.3d 1266, 1268 (11th Cir. 2004) (per curiam); United
States v. De Laurentis, 230 F.3d 659, 660 (3d Cir. 2000); United
States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996); United States
v. Mann, 517 F.2d 259, 267 (5th Cir. 1975) – even when the
challenge centers on the adequacy of the evidence concerning the
interstate-commerce aspects of a Hobbs-Act offense, see United
States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (stressing
that unless prosecutors have "made what can fairly be described as
a full proffer of the evidence [they] intend[] to present at trial
to satisfy the jurisdictional element of the offense, the
sufficiency of the evidence is not appropriately addressed on a
pretrial motion to dismiss an indictment").3 Ultimately, we can do
3
See generally United States v. Sampson, 371 U.S. 75, 78-79
(1962) (deeming it unimportant that none of the charges had been
"established by evidence" at the motion-to-dismiss stage, because
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no better than repeat what the Supreme Court said in a related
context over 55 years ago: in the ordinary course of events, a
technically sufficient indictment handed down by a duly empaneled
grand jury "is enough to call for trial of the charge on the
merits." Costello v. United States, 350 U.S. 359, 363 (1956)
(explaining that the Fifth Amendment's grand-jury guarantee does
not give defendants the right to a "preliminary trial to determine
the competency and adequacy of the evidence" undergirding the
indictment). Tellingly, Guerrier cites no cases supporting his
position, and, unsurprisingly, we know of none either. The net
result is that the judge correctly denied Guerrier's motion to
dismiss the indictment.
Un-Mirandized Statements
Guerrier also moved pretrial to suppress prearrest
statements made during an interview with his parole officer and two
law-enforcement agents. His argument was a simple one: under the
totality of the circumstances, they had had him "in custody" and
therefore should have advised him of his Miranda rights before they
began asking questions. Miranda v. Arizona, 384 U.S. 436, 478-79
(1966). Guerrier did not testify at the suppression hearing. But
the parole and law-enforcement officers did, and this is what they
say happened, as credited by the judge (and he committed no clear
"the indictment must be tested by its sufficiency to charge an
offense").
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error in doing that, see, e.g., United States v. Hughes, 640 F.3d
428, 434 (1st Cir. 2011)):
Looking into the Bennett robbery, officers heard that
German and Guerrier had probably done it. German was no stranger
to police. They had pegged him as the chief culprit in a slew of
other drug-dealer robberies, and they wanted Guerrier to help nail
him. Having learned that Guerrier was on parole from a prior drug-
related offense, FBI Special Agent Michael Schneider asked
Guerrier's parole officer, Marc O'Donoghue, to help set up an
interview. And O'Donoghue did what he could.
At Guerrier's next regularly-scheduled parole meeting,
Schneider and a colleague, Manchester Detective Steven Coco, showed
up – dressed in plain clothes with their weapons concealed – and
camped outside O'Donoghue's office while O'Donoghue told Guerrier
that some men wanted to see him. O'Donoghue then walked Guerrier
over to Schneider and Coco, who introduced themselves as law-
enforcement agents. Schneider calmly told Guerrier that they
wanted to speak with him about a matter unrelated to his parole
status, that he was not under arrest, and that he did not have to
talk to them if he did not want to. But if he was game, Schneider
added, they could chat over a cup of coffee in a more relaxed
setting. Guerrier said okay, or something to that effect.
The foursome – Schneider, Coco, O'Donoghue, and Guerrier
– got into Schneider's unmarked Ford Explorer. Schneider drove,
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Coco rode in the front passenger seat, and Guerrier and O'Donoghue
sat in back. Keeping the doors unlocked, Schneider cruised to a
Dunkin Donuts, about five minutes away from O'Donoghue's office.
He bought Guerrier a hot chocolate at the drive-thru and then
parked in a nearby strip-mall parking lot. Other people were
milling about there.
Turning to Guerrier, Schneider thanked him for taking the
time out of his day to tag along with them and, in a low-key way,
said that they hoped he could help them with the Bennett robbery.
But Schneider stressed to him that he did not have to say anything
to them if he did not feel like it, that he was not under arrest,
and that they would drive him wherever he wanted if he wanted out.
Guerrier piped in, saying that German had asked for his help in
collecting some money, that he had driven him to 371 Manchester
Street, and that he had seen him take Bennett into a bedroom. But
he adamantly insisted that he knew nothing about a robbery.
That did not go over well with Schneider, because some of
what Guerrier said clashed with what law enforcement knew.
Schneider was "frustrated," though he stayed calm as he laid out
for Guerrier the evidence against him. Actually, neither Schneider
nor the others ever yelled at Guerrier or threatened to arrest him.
Also, Guerrier never looked nervous or scared, and he never asked
to stop the interview, which lasted 20 to 25 minutes.
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Once Schneider realized that he was not getting anywhere
with Guerrier, he offered to drop Guerrier off at a place of his
(Guerrier's) choosing. O'Donoghue then spoke up, saying that he
still had to conduct his previously-scheduled meeting with
Guerrier, so Schneider drove them back to O'Donoghue's office.
When their meeting ended, O'Donoghue arrested Guerrier for failing
a drug test two months earlier and for visiting 371 Manchester
Street, a well-known crack house. That was the first Guerrier had
heard about the failed drug test. And neither Schneider nor Coco
knew that O'Donoghue was going to arrest Guerrier.
Everyone pretty much knows that the Miranda rule tells
police not to question a suspect in custody unless they first
advise him of his right to remain silent, among other things.
Miranda, 384 U.S. at 478-79; accord Stansbury v. California, 511
U.S. 318, 322 (1994) (per curium). Following the evidentiary
hearing, the judge here concluded that Miranda was not in play
because the complained-of interview was not custodial and
Guerrier's statements "were completely voluntary," so he orally
denied the motion. Guerrier takes issue with this ruling. As
always, we review the judge's factfinding under the deferential
clear-error standard (as we mentioned above), but we give a fresh
look to how he applied the law to the facts. See, e.g., Hughes,
640 F.3d at 434. When all is said and done, we see no error.
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A person need not be under arrest for Miranda rights to
arise. Id. at 435. But he must be in "custody," because
precustodial questioning does not require Miranda warnings. Id.
Normally an inquiring court uses a two-part test to see if a person
is in custody for Miranda purposes: first the court examines the
circumstances surrounding the questioning and then it sees whether
those circumstances would cause a reasonable person to have
understood his situation to be comparable to a formal arrest. See,
e.g., Thompson v. Keohane, 516 U.S. 99, 112 (1995); Hughes, 640
F.3d at 435; United States v. Ellison, 632 F.3d 727, 729 (1st Cir.
2010). Several factors guide this analysis, including "(without
limitation) where the questioning occurred, the number of officers,
the degree of physical restraint, and the duration and character of
the interrogation." United States v. Teemer, 394 F.3d 59, 66 (1st
Cir. 2005).
Measured against these legal markers, the complained-of
encounter did not rise to the level of a custodial interrogation.
True, officers questioned Guerrier in an unmarked auto. But that
fact does not by itself implicate Miranda, given that a prearrest
interview "at a police station is not automatically deemed
custodial." Teemer, 394 F.3d at 66 (citing California v. Beheler,
463 U.S. 1121, 1125 (1983) (per curiam)). Focusing on the
atmospherics, then, we see a relatively calm and nonthreatening
prearrest interaction. Schneider politely told Guerrier more than
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once that he was not under arrest, that he need not answer any
questions, and that he could come or go as he pleased. See, e.g.,
United States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007)
(stressing that details like these support a no-custody finding);
Ellison, 632 F.3d at 730 (similar). And Guerrier expressed no
qualms about talking with them. Schneider also parked the auto in
a busy public lot and left the doors unlocked. See, e.g., United
States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999) (finding no
custody in part because the interview occurred on a "public
highway," which is "a neutral setting that police officers are not
in a position to dominate as they are, for example, an
interrogation room at a jailhouse"). He and the others wore plain
clothes and kept their weapons hidden. See, e.g., Hughes, 640 F.3d
at 436 (finding no custody in a factually similar situation). No
one screamed at Guerrier, badgered him for answers, or menaced him
in any way. See, e.g., id. at 437 (highlighting caselaw finding no
custody where officers acted in a similarly nonthreatening way).
And the interview lasted a relatively short time too, roughly 20-25
minutes. See, e.g., id. (ruling that an interview lasting 90
minutes was not custodial); United States v. Nishnianidze, 342 F.3d
6, 14 (1st Cir. 2003) (holding that a 45-minute interview did not
implicate Miranda). All of this supports the judge's ruling that
the interview was noncustodial. See, e.g., Hughes, 640 F.3d at
436-37; Ellison, 632 F.3d at 730. That one parole and two law-
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enforcement officers were present during the questioning does not
tip the custody balance in Guerrier's favor either. See, e.g.,
Hughes, 640 F.3d at 436.
Despite not testifying at the suppression hearing,
Guerrier argues on appeal that because he knew that he had taken
drugs and a drug test before running into Schneider and the others
at O'Donoghue's office, "he must have known" before Schneider
kicked off the interview that he had flunked that test and that his
next stop was jail anyway – so, he says, a reasonable person would
not have felt free to leave, which means that he was in custody
under Miranda. While it is debatable whether Guerrier did enough
to preserve this issue below, we assume (without deciding) that he
did, as his theory fails for another reason: it is nothing more
than speculation, pure and simple, given that none of the
suppression-hearing evidence suggests that he had to have known
about the failed drug test before the encounter. Actually, it is
worse than speculation, because his hypothesis is contradicted by
the record. The suppression-hearing evidence shows, for example,
that Guerrier learned about the failed test after Schneider and
Coco had left. It also shows that during the interview Guerrier
did not act like he expected officers to slap the cuffs on him any
second. And this record evidence trumps his surmise.
To wrap up, we conclude that, given the totality of the
circumstances, a reasonable person in Guerrier's shoes would not
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have believed that he was under arrest. Consequently, the judge's
ruling that no Miranda warnings were required at that time stands.
Sufficiency of the Trial Evidence
Guerrier contests the sufficiency of the evidence against
him, claiming that the government did not show that the
German/Guerrier conspiracy to rob Bennett affected interstate
commerce. But Guerrier must convince us that even after "crediting
the government's witnesses and drawing all reasonable inferences in
its favor," no levelheaded jury could have found him guilty.
United States v. Aranjo, 603 F.3d 112, 116 (1st Cir. 2010). Also,
that he can float "a plausible theory of innocence" does not
matter: if the evidence (direct and circumstantial), viewed most
favorably to the verdict, establishes the essential elements of the
crime beyond a reasonable doubt, it need not cancel out every
theory consistent with his innocence. Manor, 633 F.3d at 14; see
also United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993)
(stressing that a court "need not believe that no verdict other
than a guilty verdict could sensibly be reached, but must only
satisfy itself that the guilty verdict finds support 'in a
plausible rendition of the record'") (quoting United States v.
Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)). A winning sufficiency
challenge is a rare thing indeed. See, e.g., Manor, 633 F.3d at 15
(citing United States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2006)).
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And after our de novo review, see, e.g., id. at 13, we conclude
that Guerrier's bid comes up short.
Proving an effect on interstate commerce is not too
difficult under controlling, long-existing precedent. See, e.g.,
United States v. Capozzi, 486 F.3d 711, 726 (1st Cir. 2007)
(calling the government's burden "'not onerous'") (quoting United
States v. DiGregorio, 605 F.2d 1184, 1191 (1st Cir. 1979)). Even
in a prosecution for disrupting illegal commerce, the government
need not show a substantial interference – a de minimis one will
do.4 See, e.g., United States v. DeCologero, 530 F.3d 36, 68 (1st
Cir. 2008). Certainty of a de minimis effect is not required
either. A "realistic probability" suffices. See United States v.
Butt, 955 F.2d 77, 80 n.2 (1st Cir. 1992). And "[e]ven potential
future effects" may be enough. Capozzi, 486 F.3d at 726. When it
comes down to it, "little is needed" to cross this "very low"
threshold. United States v. Murphy, 193 F.3d 1, 10 (1st Cir.
1999).
Drug dealing typically is an enterprise that affects
interstate commerce, and dealer-on-dealer robbery can satisfy the
affecting-commerce element of the Hobbs Act by (for example)
depleting the victim-dealer's business assets. See, e.g.,
DeCologero, 530 F.3d at 68; Capozzi, 486 F.3d at 726. Also, the
4
"De minimis" is legalese for "trifling" or "minimal."
Black's Law Dictionary 496 (9th ed. 2009).
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Act can cover "the use of force and threats to resolve a
contractual dispute among businessmen." United States v. Porcaro,
648 F.2d 753, 760 (1st Cir. 1981).
Hoping to convince us that his case does not come within
the Act's reach, Guerrier argues like this: Because German and
Bennett were members of the same drug-dealing business (the 371
Manchester Street crack house) that serviced the same clientele,
the robbery simply shifted assets (money and drugs) from one member
(Bennett) to another (German). And because the assets stayed
within the same business, the robbery did not deplete the
business's assets, meaning no rational jury could find that the
German/Guerrier conspiracy affected interstate commerce, even
minimally. Guerrier's theory is certainly interesting. But his
reading of the record does not square with our standard of review,
which is heavily stacked against him – again, we must peruse the
record from the prosecution's perspective, making all inferences
and credibility choices in its favor. See, e.g., United States v.
Polanco, 634 F.3d 39, 45 (1st Cir. 2011). And that makes all the
difference.
What the jury learned was that German had only one
partner in this drug-pushing venture – and Galeano was the guy, not
Bennett. The two (German and Galeano) split all profits 50/50.
Galeano knew Bennett from their time spent together in prison.
Having dealt drugs in New York, Bennett decided to deal in New
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Hampshire because he thought he could earn greater profits there
(crack is harder to come by in New Hampshire, apparently, so
Bennett could take crack from New York and charge a higher price to
customers in the Granite State). Bennett wanted to stay at 371
Manchester Street, the crack house that German and Galeano ran.
German said no at first. But Galeano explained that Bennett was
coming to New Hampshire to peddle drugs regardless, so German
decided to "make some money" off him. A deal was struck: Bennett
could live at the crack house and start selling his New York crack
to German and Galeano's New Hampshire customers (as a newcomer to
the scene, Bennett had no existing client base there), provided he
gave German and Bennett part of his profits and some of his supply.
Discussing the dynamics of their relationship, German called
Bennett simply one of his suppliers.
The record does not say what cut of his profits Bennett
had to hand over to German and Galeano. But a jury could infer
that he was still left with enough money to make the whole
arrangement worth his while – money that he could use to buy more
crack during his biweekly drug-buying treks to New York. And a
jury could also infer that Bennett would have headed to New York
soon had German and Guerrier not paid him that late-night visit to
avenge his breaching the agreement with German and Galeano – a
visit that left him with less cash to buy crack.
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Viewing the record in the light most favorable to the
verdict, we think that a clear-sighted jury could find several
things. First, there was a German/Galeano drug-dealing business –
not a German/Bennett one. Second, Bennett ran his own New
Hampshire drug-dealing venture, fueled by a New York supply.
Third, he had contracted with German and Galeano so that he could
find a footing in the New Hampshire market. And fourth, he did not
live up to his commitments, which led to the robbery, which in turn
gummed up his drug-buying operation. From all this, a rational
jury could find that the German/Guerrier conspiracy had a realistic
probability of affecting interstate commerce to some minimal
degree, either because it worked to settle a business squabble
among persons engaged in interstate commerce, see, e.g., Porcaro,
648 F.2d at 760, or depleted the assets of Bennett's interstate
enterprise, see, e.g., DeCologero, 530 F.3d at 68; Capozzi, 486
F.3d at 726, or both. A reasonable jury, in short, had sufficient
bases to convict Guerrier under the Hobbs Act.
Ineffectiveness of Counsel
As a last stand, Guerrier challenges his conviction on
ineffective-assistance grounds, arguing that his trial counsel
botched his case by not moving to dismiss the indictment after the
government (supposedly) flouted his rights under the Interstate
Agreement on Detainers Act (the "IADA," for short). See 18 U.S.C.
App. 2 § 2. Prosecutors had him shipped from state custody (where
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he was following his parole-violation arrest) to federal custody
for arraignment on the federal indictment, and then back again, he
says. And that, he protests, infracted the IADA's anti-shuttling
provision, which "ensures that, once the receiving government
obtains custody of the prisoner, it will try him before returning
him to the sending government's stewardship." United States v.
Hunnewell, 891 F.2d 955, 958 (1st Cir. 1989).
Subpar performance and prejudice are the two essentials
for a winning ineffective-assistance claim. See, e.g., Strickland
v. Washington, 466 U.S. 668, 688, 691-92 (1984). A huge problem
for Guerrier, though, is that we typically do not review a claim
like that on direct appeal, requiring instead that a defendant
raise it (if at all) in a separate collateral proceeding. See,
e.g., United States v. Rivera-Gonzalez, 626 F.3d 639, 644 (1st Cir.
2010). An exception exists for the rare case where the record is
sufficiently developed and the important facts are undisputed.
See, e.g., United States v. Torres-Rosario, 447 F.3d 61, 64 (1st
Cir. 2006). This is not that case, however. A big unknown on this
record is how prosecutors got Guerrier to federal court. Did they
use a writ of habeas corpus ad prosequendum (the "writ," for
simplicity's sake) or an IADA detainer? We see a writ in the
record, not a detainer. But the government argues, persuasively,
that only a court on collateral review can give a definitive answer
on this critical question – critical because Guerrier needs an IADA
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detainer as a first step in showing an IADA violation. See United
States v. Casas, 425 F.3d 23, 67 (1st Cir. 2005). Guerrier,
notably, does not take issue with this argument. The government
also insists that the current record leaves a lot to the
imagination on other issues (e.g., whether Guerrier's lawyer's
alleged shortcomings caused prejudice) – uncertainties that can
only be resolved through the habeas process, it quickly adds. But
what we have said already about the writ/IADA-detainer mystery is
enough to reject Guerrier's ineffective-assistance claim as unripe.
See, e.g., Rivera-Gonzalez, 626 F.3d at 644-45; United States v.
Moran, 393 F.3d 1, 10-11 (1st Cir. 2004); Hunnewell, 891 F.2d at
956. If he wishes, he can pursue the matter by filing a petition
with the district court under 28 U.S.C. § 2255. See, e.g., Rivera-
Gonzalez, 626 F.3d at 645; Moran, 393 F.3d at 16; Hunnewell, 891
F.2d at 956 n.1. Obviously, we express no view on how a petition
like that might fare.
Conclusion
Our review over, we affirm Guerrier's conviction and
dismiss his ineffective-assistance claim without prejudice.
So ordered.
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