United States v. Gonzalez

United States Court of Appeals
For the First Circuit

No. 08-2578

UNITED STATES OF AMERICA,

Appellee,

v.

JESUS GONZALEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Susan E. Taylor for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, and Sandra R.
Herbert, Assistant United States Attorney, were on brief, for
appellee.

June 23, 2010
 LYNCH, Chief Judge. This case demonstrates several

patterns in urban drug dealing: the shipment of packages of large

quantities of drugs through reputable carriers, here DHL; the use

of largely empty apartments by drug conspirators as drug drops to

which the shipments are addressed; and police who pretend to be

carrier employees, make deliveries, and arrest those who take

control of the package at the apartments. The defendant, Jesus

Gonzalez, convicted of conspiring to distribute and possessing with

the intent to distribute cocaine and marijuana, tries to take

advantage of this pattern to argue the court erred in not

suppressing statements and evidence from this sequence, including

from a search of the apartment to which his female co-conspirator

consented. Gonzalez is mistaken.

Gonzalez also made the mistake of committing perjury in

the course of the suppression hearing. He ended up with a two-

level enhancement to his sentence, from which he appeals. We

affirm his conviction and sentence.

I.

A. Facts

We describe the facts as the district court found them

from the suppression hearing. The court relied on the testimony of

three police officers--Detectives Ruggiero and Sanzi and Sergeant

Rave--and Gonzalez's consistent testimony. We also note

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inconsistent testimony by Sanzi and the defendant, Gonzalez, that

the district court rejected.

In July 2007, DHL was given a package in California

containing about one kilogram of cocaine and twenty-four pounds of

marijuana to deliver to "Anna Ohoven," 80 Hawkins Street, Second

Floor, Providence, Rhode Island. The record does not reveal how

DHL learned that the box contained drugs, but Gonzalez does not

deny that DHL had that information, made the police aware of the

drugs, and turned the package over to Rhode Island police. A male

caller had phoned DHL to inquire when it would be delivered; the

DHL phone number was later found in Gonzalez's pocket.

Providence Detective Richard Ruggiero attempted to

deliver the package on July 23, 2007, to the addressee, Ohoven, at

the 80 Hawkins address, which was the second-floor apartment of a

two-story, two-apartment building. He posed as a DHL deliveryman

and drove a DHL truck. After knocking at the apartment door,

Ruggiero heard someone climbing the stairs, who turned out to be

Gonzalez. Gonzalez said he was expecting the package, opened the

apartment door with his own keys, and invited Ruggiero inside the

apartment. The apartment seemed vacant; it appeared to contain

only a mattress and some clothes, not identifiable by gender from

Ruggiero's position, strewn about.

Gonzalez offered to sign for the package, saying that

Ohoven was his cousin and lived with him in the apartment. When

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Ruggiero insisted that Anna Ohoven had to sign for it, Gonzalez

said he could reach Anna and then called someone and spoke Spanish.

He handed Ruggiero the phone and said Anna was on the line.

Ruggiero spoke with a woman who identified herself as Anna and said

she could pick the package up at noon. Ruggiero agreed to return

at noon.

After Ruggiero left, Detective Timothy Sanzi, conducting

surveillance, saw Gonzalez return to the apartment twice, the

second time with a woman, later identified as Kristina LaFrance.

LaFrance later pled guilty and testified against Gonzalez.

Gonzalez and the woman went inside the building; then Gonzalez left

the building, parked his car in front of a lemonade stand up the

street, and watched the building from his car.

Ruggiero returned to the apartment about fifteen minutes

after Gonzalez and the woman arrived at the building. LaFrance,

who was inside the apartment, answered the door. She identified

herself to Ruggiero as Anna and as the woman on the earlier phone

conversation and said she lived in the apartment. She could not

produce identification. LaFrance then signed for the package,

writing the name "Anna Ohoben" and her address as the 80 Hawkins

second-floor apartment. Ruggiero identified himself as a police

officer, summoned backup, and arrested her.

LaFrance gave Ruggiero permission to search the

apartment. Ruggiero then did a quick sweep of the apartment, which

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the district court treated as a protective sweep; on the kitchen

counter he found a pink slip of paper with the name "Anna Ohoben"

signed repeatedly, as if for practice, and the DHL package tracking

number. Further searching with other officers uncovered more

evidence. LaFrance said that her brother's boyfriend had paid her

$100 to pick up the package, and she produced a $100 bill as proof.

Sanzi and other police officers arrested Gonzalez, who

was still sitting in his car. Detective Sanzi realized that

Gonzalez spoke poor English; he brought Gonzalez to the apartment

so that Sergeant Rave, who speaks fluent Spanish, could communicate

with him. Rave read Gonzalez his Miranda rights in Spanish, which

Gonzalez confirmed he understood, and then interviewed him.

Gonzalez told Rave that he had never been to the apartment before

and was simply buying lemonade up the street. Gonzalez's own

testimony confirmed that his statement to Rave that he had never

been to the apartment was untrue; at the suppression hearing

Gonzalez testified that he lived in the apartment.

Rave also did a pat-down search of Gonzalez. Among other

items, he found two pieces of paper. One had "DHL," "Anna Ohoben,"

and the package tracking number written on it. The other had the

DHL phone number on it. He also found keys to a Mercedes-Benz; a

silver Mercedes, registered to Gonzalez, was parked in the

apartment building's driveway.

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 Ruggiero later obtained a search warrant for the

Mercedes, after learning that Gonzalez sometimes used a silver

Mercedes to traffic drugs. That search turned up further

incriminating evidence.

At the suppression hearing, Detective Sanzi testified

that he did not see Gonzalez enter the building when Ruggiero made

his first delivery attempt. Sanzi was on roving surveillance and

was driving around the block at the time. He did see Ruggiero

enter the building and then heard on police radio that Ruggiero was

speaking on the phone to a woman. Sanzi later saw Ruggiero come

downstairs and approach and speak to Gonzalez, who was on the

street.

Gonzalez testified that on July 23 he was living, alone,

in the 80 Hawkins apartment. He came home and found a DHL delivery

person waiting. Gonzalez testified that he was not expecting a

delivery and that he had told Ruggiero that the package was not

his. He could not explain why the package was addressed to his

apartment.

Gonzalez testified that he told Ruggiero that his cousin

possibly was expecting a package. At the hearing Gonzalez could

not name that cousin, but he was sure he had not said her name was

Anna Ohoven. He admitted putting his cousin on the phone with

Ruggiero but said that he did not know what was said. Gonzalez

testified that he offered to let Ruggiero leave the package outside

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the apartment, which Ruggiero declined, and Gonzalez and Ruggiero

left. Gonzalez denied ever allowing Ruggiero inside the apartment.

Gonzalez testified that he then drove to see his brother

and invited his brother's girlfriend, LaFrance, to clean the

apartment. He testified that he dropped LaFrance off to clean the

apartment and purchased a lemonade while waiting for LaFrance to

finish. Gonzalez testified that Rave did not read his Miranda

rights before interrogating him at the apartment, which the

district court did not believe. He claimed that he was driven to

the state police barracks (in his own car) and there signed a

waiver form, though his rights were never read to him. Gonzalez

also said that Rave searched him at the barracks, not at the

apartment.

The district court fully credited Ruggiero's and Rave's

testimony, reflected in the earlier narrative. It credited Sanzi's

and Gonzalez's testimony to the extent their stories matched the

other officers'. It did not credit any of Gonzalez's conflicting

testimony.

B. Procedural History

Gonzalez was indicted with LaFrance on July 25, 2007, on

three counts of conspiracy to distribute and possession with the

intent to distribute cocaine and marijuana. On August 19, 2008,

Gonzalez moved to suppress evidence from the searches of his

apartment, his person, and his Mercedes, as well as the statements

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he made to Rave. The district court orally denied the motion after

a hearing on September 3, 2008, at which the court heard testimony.

The court ruled that police had probable cause to arrest Gonzalez

and that Ruggiero reasonably concluded that LaFrance had apparent

authority to consent to the search of the apartment, which

foreclosed Gonzalez's challenge to the warrant to search his car.

The court also found Gonzalez had been read his Miranda rights.

A jury convicted Gonzalez on September 11, 2008, after a

four-day trial. On December 12, 2008, the district court held a

sentencing hearing for Gonzalez. The court imposed a two-level

enhancement for obstruction of justice after finding Gonzalez had

committed perjury during the suppression hearing. This ruling

increased Gonzalez's base offense level from 26 to 28. The

district court sentenced him to the bottom of his guidelines range,

seventy-eight months, and supervised release and imposed a $300

special assessment.

II.

Gonzalez's challenges to the district court's suppression

rulings are meritless. "In reviewing motions to suppress, we

review legal determinations de novo, but factual findings for clear

error, and will uphold a lower court's denial of a motion to

suppress so long as 'any reasonable view of the evidence supports

it.'" United States v. Bater, 594 F.3d 51, 55 (1st Cir. 2010)

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(citations omitted) (quoting United States v. Mendez-de Jesus, 85

F.3d 1, 2 (1st Cir. 1996)).

A. Search of the Apartment

Gonzalez does not challenge the district court's factual

finding that LaFrance voluntarily consented to the search; he

argues she lacked apparent authority to do so, and so the evidence

from the apartment should have been suppressed. The government

chose to present the consent as having been given with apparent

authority, and so we do not consider whether LaFrance had actual

authority.

A search is valid if, at the time, officers reasonably

believe a person who has consented to a search has apparent

authority to consent, even if the person in fact lacked that

authority. Illinois v. Rodriguez, 497 U.S. 177, 185-86, 188-89

(1990); United States v. Carrasco, 540 F.3d 43, 49 (1st Cir.

2008).1 The touchstone of this inquiry is what was reasonable

1
Consent is an exception to the Fourth Amendment's
prohibition on government searches of a person's residence without
a warrant. Rodriguez, 497 U.S. at 181. Police may obtain consent
from the occupant "or from a third party who possesses common
authority over the premises." Id. Common authority means people
are mutually using the property such that they have "joint access
or control" over it "for most purposes." Id. (quoting United
States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).
Mutual use means people make such shared use of a residence
"that it is reasonable to recognize that any of the co-inhabitants
has the right to permit the inspection" of the common residence
"and that the others have assumed the risk that one of their number
might permit the common area to be searched." Matlock, 415 U.S. at
171 n.7.

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under the circumstances. See Rodriguez, 497 U.S. at 188-89.

Viewed objectively, "would the facts available to the officer at

the moment . . . warrant a man of reasonable caution in the belief

that the consenting party has authority over the premises?" Id. at

188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)) (alteration

in original) (internal quotation marks omitted).

Detective Ruggiero could have reasonably believed

LaFrance had authority to consent to the search of the apartment.

LaFrance and Gonzalez told Ruggiero that she lived in the

apartment, and she answered the door when Ruggiero returned. The

package was addressed to Anna Ohoven at the second-floor apartment

on 80 Hawkins. "Ohoven" arranged with Ruggiero to pick up the

package there at noon. LaFrance identified herself as Ohoven, and

she signed for the package.

Gonzalez argues it was unreasonable for the officers to

believe LaFrance's claim that she lived in the apartment because

she misspelled the name Ohoven as "Ohoben," could not produce

identification, and it appeared no one lived in the apartment. If

these facts signaled that LaFrance was lying, they supported the

inference that the apartment was not lived in at all but was being

used as a drug drop to which she at least had joint access.

The test is not whether LaFrance actually lived in the

apartment but whether she apparently had sufficient authority to

consent to its search. It would turn the Fourth Amendment upside

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down to say that an officer was unreasonable because the person

claiming authority who answered the door did not in fact live there

but used it for drug dealing. The doctrine of apparent authority

to consent to searches of physical spaces is not limited to

residences where people live. While many cases have arisen in the

context of dwellings, e.g., United States v. Penney, 576 F.3d 297,

307 (6th Cir. 2009); United States v. Nichols, 574 F.3d 633, 636-37

(8th Cir. 2009); United States v. McGee, 564 F.3d 136, 139-41 (2d

Cir. 2009), neither the Fourth Amendment nor the ability to consent

is so limited, see, e.g., United States v. Murphy, 516 F.3d 1117,

1124 (9th Cir. 2008) (observing that common authority extends "well

beyond residences" and holding that a person had common authority

over storage units); United States v. Law, 528 F.3d 888, 903-04

(D.C. Cir. 2008) (holding that a landlord had authority to consent

to a search of an apartment the defendant did not live in but used

for drug storage).

B. Search Incident to Arrest

Gonzalez argues the evidence from the search incident to

his arrest should have been suppressed because police lacked

probable cause to arrest him. Probable cause exists when

reasonably prudent police officers, under the facts and

circumstances, would believe the defendant had committed or was

about to commit a crime. United States v. Burhoe, 409 F.3d 5, 10

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(1st Cir. 2005). The recitation of the facts earlier refutes

Gonzalez's argument.

When Ruggiero initially tried to deliver the package,

Gonzalez said he was expecting the delivery, claimed to be Ohoven's

cousin, and offered to sign for the package. Gonzalez had the keys

to the apartment at the delivery address and let Ruggiero inside

that apartment. Gonzalez also put Ruggiero on the phone with

"Ohoven" and later drove LaFrance, who ultimately signed for the

package as "Ohoben," to the 80 Hawkins apartment while Gonzalez

watched nearby. There was probable cause.

C. The Warrant to Search Gonzalez's Mercedes-Benz

Gonzalez argues that without evidence recovered from his

apartment and person there was insufficient evidence to support the

search warrant of his Mercedes-Benz. It follows from what we have

said that this argument fails.2

D. Statements Gonzalez Made after His Arrest

Gonzalez next argues the district court should have

suppressed the statements he made to Rave after his arrest because,

contrary to Rave's testimony, Rave did not first read his Miranda

rights to him. The district court did not clearly err by crediting

Rave's testimony over Gonzalez's.

2
We need not reach the district court's alternative
conclusion that, even without the evidence found on Gonzalez or in
the apartment, sufficient evidence supported the search warrant.

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 Gonzalez appears to make one further argument: that a

language barrier prevented him from understanding his rights.

Rave's testimony, accepted by the district court, that he read

Gonzalez those rights in Spanish and that Gonzalez confirmed he

understood them refutes this claim.

III.

The district court did not err when it imposed a two-

level sentencing enhancement for obstruction of justice after

finding Gonzalez committed perjury at the suppression hearing. We

review the court's legal conclusions de novo and factual

conclusions for clear error. United States v. Duclos, 214 F.3d 27,

31 (1st Cir. 2000). Gonzalez does not claim that the district

court's interpretation of the Sentencing Guidelines was error; he

argues there was insufficient evidence to support the enhancement.

District courts may impose a sentencing enhancement for

obstruction of justice, see U.S.S.G. § 3C1.1, when, inter alia,

they find by a preponderance of the evidence that a defendant has

committed perjury, United States v. Shinderman, 515 F.3d 5, 18-19

(1st Cir. 2008); United States v. Gobbi, 471 F.3d 302, 314 (1st

Cir. 2006); e.g., United States v. Meada, 408 F.3d 14, 19-20 (1st

Cir. 2005) (upholding an enhancement based on false testimony at a

suppression hearing).

To impose this enhancement, district courts must find the

"specific elements of perjury." United States v. Campusano, 556

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F.3d 36, 40 (1st Cir. 2009). Perjury means "false testimony under

oath concerning a matter material to the proceeding, as long as the

testimony is given 'with the willful intent to provide false

testimony, rather than as a result of confusion, mistake, or faulty

memory.'" Shinderman, 515 F.3d at 19 (quoting United States v.

Dunnigan, 507 U.S. 87, 94 (1993)). Courts "should be cognizant

that inaccurate testimony or statements sometimes may result from

confusion, mistake, or faulty memory and, thus, not all inaccurate

testimony or statements necessarily reflect a willful attempt to

obstruct justice." U.S.S.G. § 3C1.1 cmt. n.2.

Gonzalez's claim is that the district court did not

sufficiently consider whether he simply suffered memory lapses or

was confused. We agree with the district court that "there is no

way you can view [the] entire testimony as anything other than an

effort to completely and totally deceive the Court in an effort to

try to get the Court to grant the suppression motion."

Gonzalez's testimony involved a series of convenient and

implausible denials. We list only a few. He insisted that he was

not expecting a delivery and that he never told Ruggiero the

delivery was his or that he knew Anna Ohoven. And he insisted,

despite Rave's contrary testimony, that Rave never read his Miranda

rights to him.

Gonzalez failed to justify several inconsistencies.

Gonzalez never explained why papers with the name "Anna Ohoben,"

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the package's tracking number, and DHL's phone number were in his

pocket, other than to suggest the police planted them there.

Gonzalez also did not explain why he would need LaFrance to clean

a basically empty apartment. As the district court observed, his

denials were conveniently targeted at critical evidence that

supported his suppression motion.

Affirmed.

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