United States v. Vazquez

United States Court of Appeals
For the First Circuit

No. 12-1203
UNITED STATES OF AMERICA,

Appellee,

v.

KATHY VÁZQUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]

Before
Torruella, Thompson and Kayatta,
Circuit Judges.

Allison J. Koury, by appointment of the court, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.

July 18, 2013
 KAYATTA, Circuit Judge. Kathy Vázquez sold crack cocaine

to a confidential informant. A police search of her home later

turned up powder cocaine, cash, and drug-dealing paraphernalia.

Based on this evidence, Vázquez was convicted of three drug-related

offenses and sentenced to 78 months' imprisonment.

On appeal, Vázquez challenges three different steps in

the process that brought her to a prison cell. First, she claims

that her consent to the FBI's warrantless search of her home was

secured by a false claim that a lawful, warrantless search of her

home would ensue without her consent, rendering the evidence

discovered through that search inadmissible at trial. Second, she

argues that the district court should have instructed the jury on

the defense of duress. Finally, she asserts that the district

court miscalculated her sentence under the United States Sentencing

Guidelines by assigning her responsibility for too much crack

cocaine, as well as for a gun possessed by her co-conspirator

before the beginning of the charged conspiracy.

We find that the district court erred in failing to

determine whether there were reasonable grounds to support the

claim made to Vázquez that a lawful, warrantless search of her home

would ensue without her consent. Otherwise, we reject Vázquez's

arguments on appeal. As explained more fully below, we therefore

affirm Vázquez's conviction on two of the three offenses, vacate

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her conviction on the third, and remand the case for further

proceedings consistent with this opinion.

I. Background

In the fall of 2007, the Federal Bureau of Investigation

received a tip from a confidential informant that Vázquez and her

boyfriend, Bernado "Junito" Soto, were involved in the distribution

of illegal drugs. On December 5, 2007, the FBI arranged for that

informant to make a controlled buy of crack cocaine from Vázquez

and Soto. The informant phoned Vázquez and agreed to meet her

inside a local Walgreens to purchase 14 grams of crack cocaine from

her, pre-bagged for resale. The sale occurred as planned, while

Soto waited outside. After Vázquez and the informant exited the

store together, the informant spoke to Soto for a few minutes about

what Soto wanted done with a gun that he had previously loaned to

the informant's boyfriend.

The next day, the informant made a second controlled buy

of another 14 grams of crack cocaine from Vázquez and Soto, this

time at Vázquez's home. The three chatted about various aspects of

their drug dealing activities, including a scheme to smuggle liquid

cocaine from the Dominican Republic into the United States.

The last controlled buy was supposed to occur on January

16, 2008. The informant again visited Vázquez's home, seeking to

purchase crack cocaine, but this time Vázquez and Soto told her

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that they only had powder cocaine in stock and that it was not good

for cooking into crack.

Later that same day, New Hampshire Probation and Parole,

working in coordination with the FBI, arrested Soto on a parole

violation in a parking lot near a gym in Nashua. Thereupon, the

FBI sought and received Vázquez's permission to search her home,

where Soto had been staying. The search turned up two plastic bags

of powder cocaine; a number of unused plastic bags; approximately

$4,620 in cash; a Western Union receipt dated three days prior

indicating that Vázquez had sent money to the Dominican Republic;

a digital scale; two kinds of cutting agent used to prepare cocaine

for sale; and a filter for cutting cocaine.

Vázquez was subsequently indicted on four separate

counts: (I) Conspiracy to Distribute Cocaine and Cocaine Base

(crack) beginning on December 5, 2007, and continuing through

January 16, 2008; (II) Distribution of Cocaine Base on December 5,

2007; (III) Distribution of Cocaine Base on December 6, 2007; and

(IV) Possession of Cocaine with Intent to Distribute on January 16,

2008. See 21 U.S.C. § 841(a)(1) & 846 (2006). Prior to trial,

Vázquez moved to suppress the evidence seized in the search of her

home, pressing the argument that her consent had been secured by a

false claim of authority to search. After an evidentiary hearing,

the district court denied her motion to suppress. Vázquez was

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ultimately convicted on the first, third, and fourth counts, and

was acquitted on the second count.

At sentencing, the district court calculated Vázquez's

recommended sentence under the United States Sentencing Guidelines

by attributing to her approximately 100 grams of crack cocaine,

which gave her a base offense level of 26. See U.S.S.G. §

2D1.1(c)(6). The court also found that a firearm was possessed in

connection with the charged conspiracy and accordingly enhanced

Vázquez's base offense level by two, raising it to 28. See id. at

§ 2D1.1(b)(1). In combination with Vázquez's criminal history

category of I, these findings yielded a recommended sentence of 78

to 97 months. The court sentenced Vázquez to a 78-month term of

imprisonment.

II. Analysis

A. The Search of Vázquez's Home

The Fourth Amendment forbids law enforcement from

searching a suspect's home without a warrant unless the search

falls under "one of the 'few specifically established and well-

delineated exceptions' to the warrant requirement." United States

v. Forbes, 181 F.3d 1, 5 (1st Cir. 1999) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973)). Consent to the search is

one such exception. See id.

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 For consent to a search to be valid, however, the

government must prove by a preponderance of the evidence that the

consent was uncoerced. See United States v. Vanvliet, 542 F.3d

259, 264 (1st Cir. 2008). The presence of coercion is a question

of fact based on the totality of the circumstances, including "the

consenting party's knowledge of the right to refuse consent; the

consenting party's possibly vulnerable subjective state; and

evidence of inherently coercive tactics, either in the nature of

police questioning or in the environment in which the questioning

took place." United States v. Twomey, 884 F.2d 46, 51 (1st Cir.

1989) (citing Schneckloth, 412 U.S. at 227, 229, 247)).

Importantly, courts must also consider "any evidence that law

enforcement officers' ... misrepresentation prompted defendant's

acquiescence to the search." Vanvliet, 542 F.3d at 264-65 (citing

Moran v. Burbine, 475 U.S. 412, 421 (1986)).

As we will explain, this is a case in which the record is

clear that a representation by the FBI prompted Vázquez's

acquiescence to the search. Specifically, the FBI obtained

Vázquez's consent to search her home by telling her that a

warrantless search of her home would be conducted without her

consent. The central questions thus posed for the district court

were whether the representation was correct and, if not, whether

the consent was invalid and the search unlawful. In answering

these rather difficult questions, the district court found itself

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unable to determine whether the representation used to procure

Vázquez's consent was false. Nevertheless, the court ruled that,

as long as the FBI agents acted in "subjective good faith" in

claiming that a warrantless search could be conducted without

Vázquez's consent, her consent validated the search.

On appeal from that ruling, we review the district

court's conclusions of law de novo and its findings of fact for

clear error. See Ornelas v. United States, 517 U.S. 690, 696-98

(1996). In so doing, we find that reasonableness, rather than

subjective good faith, is the controlling legal standard; consent

procured by a claim that a search will ensue anyhow is valid only

if the claim is based on a reasonable assessment of the facts under

the applicable law. Because the district court did not determine

whether the FBI agents' representation was correct based on a

reasonable assessment of the facts, because the record does not

dictate an answer to this question, and because admission of the

results of the search at trial was not harmless as to Count IV,

remand is required. Our reasoning follows.

1. Procuring Vázquez's Consent

Once Soto was arrested, two FBI agents dressed in plain

clothes approached Vázquez, identified themselves, and asked if she

would have a cup of coffee with them at a nearby Dunkin' Donuts.

Neither agent displayed firearms or handcuffs, touched Vázquez, or

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told her that she was under arrest. Vázquez agreed to join them

for coffee.

Inside the Dunkin' Donuts, the agents ordered Vázquez a

cup of coffee and allowed her to use the restroom unescorted while

they secured a table. Vázquez later joined the agents at the

table. She did not appear upset or unsettled. One of the agents

asked Vázquez for her cooperation in their investigation,

explaining that Soto had been arrested for a parole violation.

As it became clear that Vázquez was not willing to

cooperate with the investigation, the agents changed tack and

attempted to obtain Vázquez's consent to a search of her home.

Vázquez asked the FBI agents if they had a search warrant for her

home. In response, they told her that, while they did not have a

warrant, New Hampshire Probation and Parole had the authority to

search her home without her consent, and was going to do so. The

agents based that assertion on information communicated to them by

New Hampshire Probation and Parole, which had informed the FBI

earlier in the day that it intended to search Soto's residence--

assumed to be the same as Vázquez's--after his arrest.1

1
The government's brief claims that the FBI agents "merely
provided the defendant with truthful information that another law
enforcement agency believed that it had the right to search on a
ground other than consent." Says the government, "Special Agent
Schneider made no statement suggesting his own view on this
authority." Special Agent Schneider, however, testified flatly to
the contrary: "I'm sure I told her that probation and parole has
the authority to conduct a search at that residence." In a similar

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 The FBI agents explained to Vázquez that if she consented

to an authorized search, she could help the agents to separate her

property from Soto's and thereby distance herself from his illegal

activities. Vázquez expressed concern that the search might make

a mess of her house, and asked a few other questions about the

process. After the officers explained to her how the search would

proceed, and then reviewed with her a written consent form, she

signed the form granting consent to search her home.

The entire conversation in the Dunkin' Donuts lasted

between 15 and 20 minutes. Having obtained Vázquez's consent, the

FBI agents drove to her home, where they met New Hampshire

Probation and Parole officers. Together, the agents and officers

jointly searched the premises, discovering the evidence described

above.

Three aspects of the discussion between the FBI agents

and Vázquez are especially pertinent. First, nothing in the record

can be reasonably understood to suggest that Vázquez would have

consented to the search but for the agents' assertion that a search

by New Hampshire Probation and Parole would ensue anyway. Having

first refused to cooperate generally, her initial response to the

agents' request for consent to search was to ask if there was

vein, the government suggests that the agents merely allowed that
a search without consent was "likely." As the district court
expressly found, however, the agents told Vazquez "that the state
had the authority to search and in fact were going to search."

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already a warrant; i.e., whether a search was going to happen

either way. She only consented to the search after she was assured

that a search was inevitably going to occur, even without a

warrant; i.e., there was no possible upside to refusing consent.

Second, while the agents' confident and professional behavior

likely enhanced the credibility of any assurances they conveyed,

nothing in the record suggests that what they said or did was

otherwise coercive or in any way inappropriate. Third, there is no

basis for reversing as clear error the district court's

determination that the agents honestly believed that New Hampshire

Probation and Parole officers could conduct a lawful search without

Vázquez's consent.

2. New Hampshire Probation and Parole's Authority to Search
Vázquez's Home

On appeal, the government correctly observes that, if New

Hampshire Probation and Parole did indeed have the right to conduct

the search of Vázquez's home without her consent, then the issue of

her consent would be moot. That is so because the consent secured

no earlier or broader search than could have been conducted

lawfully were the claim of authority correct. Building on this

observation, the government then claims that Vázquez never

challenged the independent authority of New Hampshire Probation and

Parole to conduct the search. Therefore, reasons the government,

we can affirm the denial of the motion to suppress on that

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alternative ground, rendering the consent issue effectively moot.

The flaw in this mootness argument is that Vázquez did

fairly challenge the independent authority of New Hampshire

Probation and Parole to conduct a search of her home. Indeed, her

argument was precisely that because New Hampshire Probation and

Parole did not have such authority, the agents should be found to

have employed a false claim to procure her consent. To suggest

that Vázquez somehow artificially limited this argument in a manner

that left unchallenged the authority of New Hampshire Probation and

Parole as an independent basis for sustaining the validity of the

search is to suggest that the parties and the district court

knowingly engaged in a pointless hearing.

Certainly, the district court did not view the authority

of New Hampshire Probation and Parole as an unchallenged,

alternative basis for denying the motion to suppress. Rather, the

court expressly avoided deciding whether New Hampshire Probation

and Parole actually had the authority to search Vázquez's home or

whether it was reasonable to think that they did have such

authority. The district court explained: "I don't think that's the

turning point." Instead, the district court determined that,

because the FBI agents believed that a search could be conducted

anyway, and because the FBI agents did not otherwise coerce

Vázquez's consent, the consent validated the search even if New

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Hampshire Probation and Parole could not have lawfully conducted a

search.2

It is, indeed, unclear whether New Hampshire Probation

and Parole had the right to search Vázquez's home. One suggested

basis for the search -- the arrest warrant issued for Soto due to

his violation of his parole -- could not have sufficed. The

warrant granted "the limited authority to enter [the] dwelling in

which [Soto] live[d] when there [was] reason to believe [that he

was] within." Payton v. New York, 445 U.S. 573, 602 (1980). Since

Soto had already been arrested at another location, the arrest

warrant did not authorize a subsequent search of his home as a

matter of law. Cf. United States v. Graham, 553 F.3d 6, 15 (1st

Cir. 2009) ("Although the officers possessed a valid arrest

warrant, this warrant only permitted them to seize Graham and did

not, standing alone, authorize the search of the bedroom where

Graham was found.").

As a possible alternative justification for search

without consent, that leaves only the fact that, as a condition to

his parole, Soto had agreed that New Hampshire Probation and Parole

could search his residence at any time. This kind of probation

condition can so diminish a probationer's expectation of privacy

2
To the extent that the government is also arguing that it be
allowed to supplement the record on remand, the district court
retains discretion in structuring the remand proceeding.

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that it would permit police officers to search his residence

without a warrant based only on a reasonable suspicion of criminal

conduct, see United States v. Knights, 534 U.S. 112, 119-121

(2001), which law enforcement clearly had here.3 However,

Vázquez's case differs from Knights in several important ways:

Soto's parole agreement used different language than Knights's,4

Soto had already been arrested before the search occurred,5 and

Soto might not have been residing in Vázquez's home.

Because the district court did not reach the question of

whether New Hampshire Probation and Parole really did have the

authority to search Vázquez's home, we have no analysis of whether

the terms of Soto's probation agreement would permit a warrantless

search of his home based only on reasonable suspicion, nor whether

such a search would be permissible following his arrest.

Importantly, we also have no factfinding on whether Soto resided

with Vázquez and, if not, what the various officers knew that might

have reasonably led them to believe that Soto resided with Vázquez.

3
Although some states have passed statutes giving law
enforcement the power to search the homes of persons released on
parole without any cause at all, see, e.g., Cal. Penal Code §
3067(b)(3); see also Samson v. California, 547 U.S. 843 (2006)
(upholding such statutes against Fourth Amendment challenge), we
cannot locate a similar provision under New Hampshire law, see N.H.
Rev. Stat. §§ 504-A:1-15; 651-1A:1-25 (2013), and the government
does not point us to one.
4
See, e.g., Graham, 553 F.3d at 15-18.
5
See, e.g., United States v. Trujillo, 404 F.3d 1238, 1242-43
(10th Cir. 2005)

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Without further fact-finding and analysis from the district court,

we cannot decide at this juncture whether the parole condition was

a lawful basis for New Hampshire Probation and Parole to search

Vázquez's home. Therefore, we must assume for purposes of this

appeal that New Hampshire Probation and Parole officers did not

have the right to search Vázquez's home absent her consent.

3. "Subjective Good Faith" Versus "Reasonableness"

Given the foregoing, the question posed is whether

Vázquez's consent can justify the search if secured by a sincere,

but erroneous representation that a search would ensue anyhow. The

otherwise well-developed case law on consensual searches secured by

the looming promise of a non-consensual search marks the boundaries

of our inquiry, but provides no clear answer to the specific

question posed here. The law is clear, for example, that consent

to a search is invalid if given only because of an officer's

knowingly false assurance that there will soon be a lawful search

anyway. Bumper v. North Carolina, 391 U.S. 543, 548 (1968);

United States v. Miller, 589 F.2d 1117, 1132 (1st Cir. 1978); 2

Wayne R. LaFave, et al., Criminal Procedure § 3.10(b), at 410-11

(3d ed. 2007). Similarly, the law is almost as clear that consent

to a search is not invalid merely because it is secured by an

officer's accurate assurance that there will soon be a lawful

search anyway. See United States v. Marshall, 348 F.3d 281, 286

(1st Cir. 2003); United States v. Lee, 317 F.3d 26, 33 (1st Cir.

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2003); Twomey, 884 F.2d at 52 (fact that warrant would have issued

rendered it unnecessary to decide whether and when honest, but

mistaken, representation implying that warrant could be obtained

invalidated consent); see also United States v. Wilkinson, 926 F.2d

22, 25 (1st Cir. 1991), overruled on other grounds, Bailey v.

United States, 516 U.S. 137 (1995) (the officers accurately stated

the likely consequences if the suspect refused to consent to a

search); Robbins v. MacKenzie, 364 F.2d 45, 49-50 (1st Cir. 1966)

("Bowing to events, even if one is not happy about them, is not the

same thing as being coerced."). In short, the law rejects consent

secured by knowingly false representations while at the same time

seeing no reason to deter officers from securing convenient and

prompt consensual access by conveying accurate information to a

recipient.6

This case falls between these boundaries because, as

noted, we have neither knowing falsity nor a determination of

accuracy. While there is no controlling precedent on point, the

applicable principles and analogous case law nevertheless convince

us that the agents' subjective good faith is not enough. The

Fourth Amendment by its express terms demands that searches be

"reasonable," not merely based on good intentions. "If subjective

6
Using the concept of "coercion" to distinguish these two
situations is something of a misnomer. In each case, the same
amount of pressure is brought to bear on the person's will. The
distinction resides more in concepts of knowing misrepresentation,
or "trickery." See Vanvliet, 542 F.3d at 264.

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good faith alone were the test, the protections of the Fourth

Amendment would evaporate, and the people would be ‘secure in their

persons, houses, papers, and effects,’ only in the discretion of

the police." Beck v. Ohio, 379 U.S. 89, 97 (1964). Law

enforcement officers face varied and ambiguous situations in the

course of maintaining the order necessary to make civil society

possible. They are entitled to err in assessing the facts, but

"the mistakes must be those of reasonable men, acting on facts

leading sensibly to their conclusions . . . ." Brinegar v. United

States, 338 U.S. 160, 176 (1949).

The government's position, that the subjective good faith

of its officers is enough to sustain the validity of consent as an

independent justification for a search, overlooks the compelling

potency of a representation that a search is imminent even without

consent. When law enforcement officers seek consent to search a

person's home without making such a representation, the person

giving the consent can reasonably believe that she has a choice.

Such consent, unless otherwise coerced, stands on its own as an

independent basis for sustaining the validity of the search. See

Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). Conversely,

"'[w]hen a law enforcement officer claims authority to search a

home under a warrant, he announces in effect that the occupant has

no right to resist the search.'" Id. at 234 (quoting Bumper, 391

U.S. at 550). Consent pried loose by such a claim of authority is

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merely acquiescence. As such, it serves poorly as an independent

basis for sustaining the validity of the search. Rather, its force

is largely derivative, neither adding to nor subtracting from the

reasonableness of the representation of inevitability used to

secure the consent. Accordingly, if we were to allow consent to

validate a search secured by an authoritative pronouncement of

inevitability where the officers act only in subjective good faith,

and not reasonably, we would largely eliminate any requirement that

reason necessarily play a role in securing the search.

Illinois v. Rodríguez, 497 U.S. 177 (1990), supports our

conclusion that reasonableness, not merely subjective good faith,

is the standard that the government must meet. In Rodríguez, the

police conducted a warrantless search based on the consent of a

person who appeared to have, but did not in fact have, authority

over the premises. See id. at 179-82. The defendant argued that

without valid consent from an authorized party, the search was

unlawful. See id. at 180. The Supreme Court rejected that

argument, holding that no Fourth Amendment violation occurs when

the police reasonably, though erroneously, believe that the person

who has consented to their entry has authority over the premises.

See id. at 185-86.

For present purposes, the important point is that in

rejecting the argument that the police must be correct on the

facts, the Court also made clear that an honest belief in the

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validity of the consent was insufficient: "As with other factual

determinations bearing upon search and seizure, determination of

consent to enter must 'be judged against an objective standard . .

. .'" Id. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22

(1968)). The Court emphasized that "what is generally demanded of

the many factual determinations that must regularly be made by

agents of the government . . . is not that they always be correct,

but that they always be reasonable." Id. at 185-86; cf. Hill v.

California, 401 U.S. 797, 803-04 (1971) ("The upshot was that the

officers in good faith believed Miller was Hill and arrested him.

They were quite wrong, as it turned out, and subjective good-faith

belief would not in itself justify either the arrest or the

subsequent search.").

In Rodríguez, the justification for the search was

consent given by a person who law enforcement believed was

authorized to do so. Here, the justification was consent secured

by law enforcement's announced belief that a nonconsensual search

would ensue anyway. We see no reason why reasonableness need not

characterize the officers' beliefs in both circumstances.

Otherwise, unreasonable but honest officers could parlay unlawful

grounds for conducting searches into lawful searches merely by

using the prospect of the unlawful search as a means of securing

acquiescence.

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 Our holding is compatible with the few decisions we have

found that have addressed slight variants of the issue before us.

Three cases have held that a law enforcement officer's honest but

mistaken claim of lawful authority to search invalidated the

defendant's consent and required exclusion of the resulting

evidence. In all three cases, the police lacked an objectively

reasonable factual basis for their assertions--their claims of

lawful authority were wrong even on the facts as the police

understood them. See United States v. Molt, 589 F.2d 1247, 1251-52

(3d Cir. 1978) (consent vitiated when customs agents innocently but

incorrectly asserted the legal authority to conduct a warrantless

search of a business's records); Cooper v. State, 587 S.E.2d 605,

612-13 (Ga. 2003) (consent vitiated when police officer

unintentionally misrepresented to the defendant that he was

required to submit to a warrantless blood test); Lobania v. State,

959 S.W.2d 72, 73-74 (Ark. Ct. App. 1998) (consent vitiated when

police translator innocently but incorrectly mistranslated an

officer's request to search as an officer's claim of authority to

search). One case of which we are aware held that an honest but

mistaken claim of lawful authority to search did not vitiate the

defendant's consent. In that case, the police had an objectively

reasonable basis for their claim; it just turned out that they were

mistaken about the underlying facts. See United States v. Richard,

994 F.2d 244, 252 (5th Cir. 1993) (consent valid when police

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officers honestly but inaccurately informed the subject of the

search that her boyfriend had already agreed to allow them to

search her motel room).

The conclusion that consent is invalid if procured by an

officer's unreasonable claim that a lawful search will ensue anyway

imposes no unusual burden on law enforcement officials. In many

walks of life, agreements given in justified reliance on false

representations are voidable. See Restatement (Second) of

Contracts § 164(1) (1981). (Indeed, in an ordinary contract case,

even reasonableness in making the representation might not save the

deal. Id.) Law enforcement officials, moreover, are knowledgeable

in assessing whether the facts render a search lawful. In this

context, it is no great demand to expect that they know the law and

themselves be reasonable in assessing the facts when they procure

consent to search a person's home by assuring the person that a

lawful search will ensue anyway.

In sum, by failing to determine whether the claimed

authority to search was based on a reasonable assessment of the

facts, the district court may have erred in its ultimate decision

denying the motion to suppress.

4. Harmless Error Analysis

Even if admission of the results of the search may have

been error, we need not vacate and remand if, beyond a reasonable

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doubt, the admission of the evidence could not have impacted the

result below. Neder v. United States, 527 U.S. 1, 7 (1999); Fed.

R. Crim. P. 52(a); see also United States v. Crooker, 688 F.3d 1,

9 (1st Cir. 2012); United States v. Jiménez, 419 F.3d 34, 41-42

(1st Cir. 2005).

When we apply the harmless error analysis, we place the

burden on the government to show "that the supposed error did not

affect the outcome of trial." Jiménez, 419 F.3d at 42. We conduct

"a panoramic, case-specific inquiry considering, among other

things, the centrality of the tainted material, its uniqueness, its

prejudicial impact, the uses to which it was put during the trial,

the relative strengths of the parties' cases, and any telltales

that furnish clues to the likelihood that the error affected the

factfinder's resolution of a material issue." United States v.

Castellini, 392 F.3d 35, 52 (1st Cir. 2004) (quoting United States

v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)) (internal

quotation marks omitted).

We begin with Count I, Conspiracy to Distribute Cocaine

and Cocaine Base (crack) beginning on December 5, 2007 and

continuing through January 16, 2008. See 21 U.S.C. §§ 841(a)(1) &

846. The evidence discovered inside Vázquez's home, where Soto was

at least temporarily staying, was highly incriminating, but it was

also merely cumulative of the substantial additional evidence

offered at trial indicating that Vázquez and Soto had been working

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together to sell crack cocaine during the period in question.

Aside from the materials found inside Vázquez's home, the

government also presented evidence that Soto and Vázquez together

sold crack cocaine to the confidential informant at their home on

December 6; that they planned to sell her crack cocaine once more

at Vázquez's home on January 16; and that they engaged in multiple

recorded conversations during which they both discussed their joint

drug-dealing venture in great detail.7 Based on this evidence, we

are convinced that the jury would still have convicted Vázquez on

the first count even if the evidence from the search of her home

had been suppressed.

As to Count III,8 Distribution of Cocaine Base on

December 6, 2007, see 21 U.S.C. § 841(a)(1), the evidence found in

Vázquez's home was superfluous. The government presented both

witness testimony and recorded conversations indicating that

Vázquez sold 14 grams of crack cocaine to the confidential

informant on December 6. Nothing from the search of Vázquez's home

was needed to support this conviction.

7
The government also presented evidence that the two sold
crack to the informant on December 5, but the jury acquitted
Vázquez on the charge related to that transaction. In any event,
the evidence of the December 5 sale is merely cumulative, since
there was substantial additional evidence that Vázquez and Soto
were conspiring together to distribute crack cocaine.
8
As noted above, the jury acquitted Vázquez on Count II.

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 Finally, in regard to Count IV, Possession of Cocaine

with Intent to Distribute on January 16, 2008, see 21 U.S.C. §

841(a)(1), the prosecution's case was based almost entirely on the

cocaine that the FBI agents had seized from inside Vázquez's home.

The only other evidence supporting Count IV was the confidential

informant's testimony at trial that Vázquez had mentioned to her on

January 16 that she and Soto had some powder cocaine in their

possession. We are not convinced "beyond a reasonable doubt" that

the jury would still have convicted Vázquez on Count IV based

solely on this stray and unsubstantiated remark. Neder, 527 U.S.

at 7 (internal quotation marks omitted). Accordingly, a remand

will be necessary.

5. Guidance on Remand

Given the relative novelty of the issues as framed in a

case involving a joint law enforcement exercise and the assertion

of an independent and a derivative ground for the warrantless

search, we address three additional questions that necessarily will

arise below as a foreseeable product of our holding.

First, to what determination does the assessment of

reasonableness apply: the determination of the facts, or the

determination of what the law is, based on those facts? As at

least two other sister circuits have noted, Rodríguez permits

warrantless searches based only on a reasonable mistake of fact,

not on a mistake of law. See United States v. Salinas-Cano, 959

-23-
F.2d 861, 865-66 (10th Cir. 1992); United States v. Whitfield, 939

F.2d 1071, 1073-75 (D.C. Cir. 1991); see also United States v.

Harrison, 689 F.3d 301, 309-10 (3d Cir. 2012). In other words,

Rodríguez "applies to situations in which an officer would have had

valid consent to search if the facts were as he reasonably believed

them to be." Whitfield, 939 F.2d at 1074. Rodríguez does not

permit an officer to search if his mistake is about the law -- for

instance, if he mistakenly believes that the Fourth Amendment

authorizes a search when in fact it does not, even based on the

facts as he understands them.

Second, who must have been reasonable in assessing the

facts, the FBI agents who told Vázquez that New Hampshire Probation

and Parole could and would search, or the state officers who so

told the FBI? On the one hand, agents working in a team should be

able to rely on facially plausible statements made by their

colleagues without having to conduct due diligence on their own.

On the other hand, it would create perverse incentives if

unreasonable judgments by one officer directly involved in the

arrest and search could be laundered by transmission through

another officer as ipse dixit. The answer that best balances the

considerations in this particular case is that the FBI agents were

entitled to supplement their own knowledge of the facts by relying

on the judgments of the state officers concerning the facts,

provided that those judgments were themselves reasonable. Cf.

-24-
United States v. Hensley, 469 U.S. 221, 231 (1985) ("[W]hen

evidence is uncovered during a search incident to an arrest in

reliance on a flyer or bulletin, its admissibility turns on whether

the officers who issued the flyer possessed probable cause to make

the arrest."). See generally United States v. Ramirez, 473 F.3d

1026, 1032-37 (9th Cir. 2007) (describing "collective knowledge"

doctrine).

Third, and perhaps ironically in view of the manner in

which the issues were prioritized below, our ruling renders

Vázquez's consent irrelevant in this particular case because the

threatened search by New Hampshire Probation and Parole used to

secure consent was actually conducted simultaneously and co-

extensively with the consented search. If that search by New

Hampshire Probation and Parole was valid, then as the government

argued below, there is no need to rely on Vázquez's consent.

Conversely, if that search was unlawful on its own terms, it would

only be because the facts as reasonably perceived by the officers

did not as a matter of law justify the warrantless search. The

consent here is thus truly derivative, and drops out of the

equation altogether in determining the lawfulness of this

particular search.

On remand, the district court will therefore need to

decide whether the facts as reasonably understood by the officers

and agents at the scene gave them the authority to search Vázquez's

-25-
residence without Vázquez's consent. If so, the search was lawful.

If not, the consent would not have validated the search because it

would have been secured as a result of either an unreasonable

assessment of the facts or a misapprehension of the law.

B. The Requested Jury Instruction on Duress

Vázquez's second claim of error challenges the district

court's refusal to instruct the jury on the defense of duress.

Duress is a common law defense that excuses criminal conduct if the

defendant violated the law only because she was unlawfully

threatened by another person with death or serious bodily injury.

See United States v. Bailey, 444 U.S. 394, 409-10 (1980).

At the close of trial, Vázquez asked the district court

to include a duress defense in its charge to the jury. She

emphasized that Soto was a member of the "Ñetas," a prison gang

that originated in Puerto Rico but had since acquired thousands of

members across the United States, including in New Hampshire, and

which has been involved in drug trafficking, gun violence, and

witness intimidation. She also noted that Soto had access to a

gun, and that she was particularly fearful of firearms because she

had witnessed her father shoot her mother when she was a child.

Vázquez recounted that Soto had told her about the Ñeta

gang's rules and that his gang-member friends had shared stories

"of what they do to people [who] . . . snitch." Although Soto

-26-
never threatened her, and she did not believe that he would have

hurt her himself, Vázquez felt that she had been implicitly

threatened that other Ñeta gang members might harm her or her

children if she attempted to go to the police. Allegedly, she only

participated in the scheme in order to protect herself and her

children.

The district court was unmoved. It declined Vázquez's

request for a duress instruction, citing a lack of evidence in the

record to support that theory of defense. Vázquez timely preserved

her position by objecting to the omission of the instruction before

the jury retired.

On appeal, we review de novo whether the defendant made

a threshold showing that the record evidence, construed in her

favor, supported her requested instruction. United States v.

Baird, 712 F.3d 623, 627 (1st Cir. 2013).9 In this case, it is

clear that Vázquez has not made such a showing.

First, the threat she cites was hardly immediate, or even

imminent. Rather, it was no more than a "vague threat of future

9
If the evidence does support the requested instruction, we
then move to a three-part test, also conducted de novo, which
determines whether the district court's refusal to give the
instruction constituted reversible error. According to that three-
part test, we vacate the defendant's conviction if her requested
instruction was: "(1) substantively correct as a matter of law, (2)
not substantially covered by the charge as rendered, and (3)
integral to an important point in the case so that the omission of
the instruction seriously impaired the defendant's ability to
present [her] defense." Baird, 712 F.3d at 627.

-27-
harm," which is insufficient to support a duress instruction.

United States v. Arthurs, 73 F.3d 444, 450 (1st Cir. 1996); see

also United States v. Bello, 194 F.3d 18, 27 (1st Cir. 1999).

Moreover, the inferred threat against "snitches" can be

disregarded. In a case of duress, the relevant threat is that

which "caused the actor to engage in conduct violating the literal

terms of the criminal law." Bailey, 444 U.S. at 409. Vázquez is

charged with violating the laws criminalizing the sale of cocaine,

not with failing to report those crimes.

Second, even if we were to accept the notion that Vázquez

might have construed an inferred threat against "snitching" to be

the equivalent of a threat of harm for not actively committing the

crime, such a subjective belief would not constitute a "well-

grounded" fear. Bello, 194 F.3d at 27. She needed to produce

evidence of threats that would have caused "a defendant of ordinary

firmness and judgment" to believe that she would be in immediate

danger should she not commit the criminal acts. United States v.

Castro-Gómez, 360 F.3d 216, 219 (1st Cir. 2004). The same

principle negates Vázquez's claim that the implicit threat had a

more powerful effect on her due to her past traumatic experiences

with firearms--our objective analysis does not permit consideration

of special factors unique to this particular defendant.

Finally, there was no evidence to suggest that Vázquez

lacked the opportunity to escape or frustrate any threat against

-28-
her. See Bello, 194 F.3d at 27. Vázquez testified that Soto "was

always around" at home and that the Ñetas had a presence "all over

the place," making it extremely difficult for her to turn Soto over

to the authorities. But even granting the improbable notion that

between December 5 and January 16, Vázquez did not have just a few

minutes in private when she could have contacted the police, there

is nothing to suggest that she could not have simply terminated her

romantic and professional relationships with Soto in order to

extricate herself from the drug-dealing business. Cf. Bailey, 444

U.S. at 410 (no duress defense is available "if there was a

reasonable, legal alternative to violating the law").

For these reasons, the evidence at trial, construed in

Vázquez's favor, could not have supported a finding of duress.

Accordingly, the district court did not err in refusing to instruct

the jury on the elements of the defense.

C. The Calculation of Vázquez's Guidelines Sentence

Finally, Vázquez claims that the district court

miscalculated her sentence under the United States Sentencing

Guidelines.10

10
At a sentencing hearing, the court may use evidence seized
in violation of a defendant's Fourth Amendment rights so long as
the police did not intentionally violate the Fourth Amendment in
order to increase the defendant's sentence. See United States v.
Larios, 593 F.3d 82, 87 (1st Cir. 2010); United States v. Acosta,
303 F.3d 78, 86 (1st Cir. 2002). Even if the district court
determines on remand that Vázquez's consent to the search of her
home was invalid and so suppresses the evidence obtained therein,

-29-
 The standard practice when imposing a sentence is for a

district court to use the Sentencing Guidelines to calculate a

recommended sentencing range for the defendant, and then to

consider whether a guideline sentence is appropriate in light of

the factors enumerated in 18 U.S.C. § 3553(a). United States v.

Zapata, 589 F.3d 475, 486 (1st Cir. 2009). The court may then

choose to vary from the Guidelines sentence if justified by the

particular circumstances of the case. See Gall v. United States,

552 U.S. 38, 46 (2007). Although defendants may appeal both the

procedure used to calculate their Guidelines sentencing range and

the overall substantive reasonableness of the sentence they

receive, see Zapata, 589 F.3d at 486, Vázquez challenges only the

calculation. On appeal, we review de novo the sentencing court's

interpretation of the Sentencing Guidelines and review for clear

error the court's findings of fact. United States v. Woodward, 277

F.3d 87, 91 (1st Cir. 2002).

Vázquez specifically challenges two of the variables in

her sentencing equation. First, she objects to the court's

attribution to her of approximately 100 grams of crack cocaine (86

grams more than the 14 grams she was convicted of selling to the

that decision will not impact the facts considered by the district
court in calculating Vázquez's sentence. Because the sentencing
calculation issues will arise either way, we can decide those
questions on this appeal, despite the fact that we are vacating one
of Vázquez's three counts of conviction and remanding the case for
further proceedings.

-30-
police informant).11 Second, she disputes the court's finding that

a gun was possessed in connection with the charged conspiracy

(resulting in an upward adjustment of her offense level). Because

these findings were made for purposes of sentencing, the

prosecution had the burden to prove them by a preponderance of the

evidence. See United States v. Laboy, 351 F.3d 578, 582 (1st Cir.

2003) (drug quantity); United States v. Hoey, 508 F.3d 687, 691

(1st Cir. 2007) (facts central to upward adjustments in offense

levels). We take each of Vázquez's objections in turn.

1. The Amount of Crack Cocaine

Vázquez alleges that there was insufficient evidence that

the 100 grams of drugs existed, and even if they did, that they

took the form of crack cocaine rather than powder cocaine (which is

punished less severely under the Guidelines). The record, however,

amply supported the district court's calculation. As to the nature

of the product, Vázquez's conversations with the confidential

informant made clear that she and Soto were in the business of

selling crack cocaine, not powder. Vázquez was, after all,

convicted of selling crack. Nor does the fact that powder cocaine

was found in the search dictate a contrary conclusion, since powder

11
It is not entirely clear from the transcript of the
sentencing hearing whether the district court attributed to Vázquez
92, 96, 98, or 100 grams of crack cocaine. However, all four
quantities would yield the same base offense level of 26, which
covers the range of 28 to 112 grams. See U.S.S.G. § 2D1.1(c).

-31-
cocaine is the principal ingredient used to cook crack cocaine.

See Kimbrough v. United States, 552 U.S. 85, 94 (2007). As for the

quantity, Vázquez herself referred to having run out of "100

grams," and needing to travel to New York to get more. The cash

found, minus the proceeds from the sale of a car, equaled the

estimated sales proceeds of approximately 100 grams of crack.

Small-time drug dealers rarely "author[]. . . formal

business plan[s] or keep[] meticulously detailed inventory

records." United States v. Sklar, 920 F.2d 107, 111 (1st Cir.

1990). Therefore, "in a case where cash is seized and where either

no drug is seized or the amount seized does not reflect the scale

of the offense, the sentencing court may estimate the quantity of

drugs with which Defendant was involved by converting cash to its

drug equivalent." United States v. Rios, 22 F.3d 1024, 1028 (10th

Cir. 1994). This method is commonplace in our circuit and in

others. See, e.g., United States v. Chandler, 534 F.3d 45, 50-51

(1st Cir. 2008); United States v. Sepulveda, 102 F.3d 1313, 1318

(1st Cir. 1996); United States v. Jackson, 3 F.3d 506, 510-11 (1st

Cir. 1993); see also United States v. Tokars, 95 F.3d 1520, 1541-42

(11th Cir. 1996) (collecting cases).

More broadly, Vázquez claims that she should not be held

responsible for uncharged drug sales and objects to the attribution

to her of any drugs beyond the 14 grams of crack she was convicted

of selling. While perhaps surprising to a lay person, sentencing

-32-
courts routinely take into account as "relevant conduct" drug deals

allegedly executed by defendants during the same approximate time

periods as their charged transactions even though no jury has found

the alleged deals to have occurred.12 The Sentencing Guidelines

endorse that approach: "[I]n a drug distribution case, quantities

and types of drugs not specified in the count of conviction are to

be included in determining the offense level if they were part of

the same course of conduct or part of a common scheme or plan as

the count of conviction." U.S.S.G. § 1B1.3, cmt. background; see

also United States v. Chuong Van Duong, 665 F.3d 364, 368 (1st Cir.

2012) ("Commentary to the guidelines is generally authoritative.").

Although "[n]ot every drug transaction undertaken by

every drug trafficker is necessarily linked in a meaningful sense,"

the sentencing court in this case was permitted to attribute

uncharged drug quantities to Vázquez so long as it found, by a

preponderance of the evidence, "a sufficient link between the acts

charged and those included for sentencing purposes." United States

v. Santos Batista, 239 F.3d 16, 21 (1st Cir. 2001) (quoting United

States v. Sklar, 920 F.2d 107, 111 (1st Cir. 1990)). Vázquez was

convicted both of conspiring to distribute crack cocaine between

12
See, e.g., United States v. Márquez, 699 F.3d 556, 558, 560-
61 (1st Cir. 2012); United States v. Barbour, 393 F.3d 82, 92 (1st
Cir. 2004); Laboy, 351 F.3d at 581; United States v. Santos
Batista, 239 F.3d 16, 21-27 (1st Cir. 2001); United States v.
Tabares, 951 F.2d 405, 410 (1st Cir. 1991); see also U.S.S.G. §
1B1.3(a)(2); id. at § 3D1.2(d).

-33-
December 5 and January 16 and of actually distributing crack

cocaine to the informant on December 6, and so it was reasonable

for the sentencing court to consider as well her contemporaneous

sales of that same drug to other buyers. Cf. United States v.

Eisom, 585 F.3d 552, 557 (1st Cir. 2009) (listing factors to be

considered when deciding whether to include uncharged drug sales in

a Guidelines sentence calculation as "the nature of the offenses,

their timing, their commonalities, and the existence or non-

existence of overarching patterns").

For all of these reasons, the court did not clearly err

by attributing 100 grams of crack cocaine to Vázquez when it

calculated her Guidelines sentence.

2. Soto's Gun

Vázquez also challenges the district court's finding that

a gun was possessed in connection with the charged conspiracy,

increasing her base offense level by two (raising it to 28). See

U.S.S.G. § 2D1.1(b). Vázquez stresses that the gun in question

belonged to Soto, not to her, and that Soto only had possession of

the weapon in October 2007--two months before the charged

conspiracy had even begun.

As to who owned the gun, the Sentencing Guidelines

plainly state that in cases of "jointly undertaken criminal

activity," a defendant may be held responsible for "all reasonably

-34-
foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(B).

Vázquez does not dispute that she knew Soto possessed a gun.

Indeed, she testified at trial that a gun was "accessible" to Soto,

and that she had asked him not to keep the weapon in her house.

The fact that Vázquez never handled the gun herself does not

relieve her of responsibility for its foreseeable possession by a

co-conspirator in connection with their drug dealing venture.

As to chronology, the Guidelines also make clear that the

acts and omissions for which Vázquez was accountable included all

those that were "part of the same course of conduct or common

scheme or plan as the offense of conviction." See id. §

1B1.3(a)(2); see also id. § 3D1.2(d); id. § 2D1.1. That phrase has

been interpreted to be "broader than, rather than coterminous with,

the definition of a 'conspiracy' as that term of art is used in the

overall criminal law." David v. United States, 134 F.3d 470, 476

(1st Cir. 1998). Accordingly, "conduct can still be relevant,

though it may be outside the time frame of the charged conspiracy."

Barbour, 393 F.3d at 92.

In Vázquez's case, the government presented evidence that

she and Soto were engaged in the distribution of crack cocaine at

least as far back as October 2007, the same month that Soto

possessed the gun. Furthermore, even during the period of the

conspiracy for which Vázquez was convicted, she was present during

-35-
a conversation concerning Soto's preferences regarding the gun's

disposition and possible return to him. The sentencing court

indicated that it was well aware of the danger posed by a

boundaryless interpretation of the "relevant conduct" Guideline,

and yet it still determined that Soto's gun possession was part of

the same course of conduct as Vázquez's December through January

crack cocaine conspiracy. The court did not clearly err by

reaching that conclusion. See id.

Therefore, we find no error in the district court's

calculation of Vázquez's Guidelines sentence.

III. Conclusion

First, we conclude that the district court erred by

denying Vázquez's motion to suppress without determining whether it

was reasonable for law enforcement to believe that New Hampshire

Probation and Parole had the authority to search without her

consent. On remand, the district court will need to determine

whether the facts as reasonably understood by the officers and

agents at the scene gave them the authority to search Vázquez's

home without consent. If so, the conviction on Count IV will stand

and Vázquez need not be resentenced. Otherwise, the conviction on

that count must be reversed, and Vázquez resentenced.

Second, we conclude that the district court committed no

error by denying Vázquez's request for a duress instruction.

-36-
 Finally, we conclude that the district court correctly

calculated Vázquez's recommended sentence under the Sentencing

Guidelines, although the district court will need to resentence

Vázquez if, on remand, it reverses the conviction on Count IV.

Accordingly, we affirm Vázquez's first two counts of

conviction and vacate her third count of conviction. We remand the

case for further proceedings consistent with this opinion.

So ordered.

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