United States Court of Appeals
For the First Circuit
No. 95-1707
UNITED STATES OF AMERICA,
Appellee,
v.
JAIME CALDERON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Stahl, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Merin Chamberlain for appellant.
Jean B. Weld, Assistant United States Attorney, with whom Paul M.
Gagnon, United States Attorney, was on brief, for the United States.
February 27, 1996
LYNCH, Circuit Judge. Having been convicted by a
LYNCH, Circuit Judge.
jury of carjacking and kidnapping, Jaime Calderon was
sentenced to 30 years of imprisonment, and five years of
supervised release thereafter. He now challenges the
verdict, saying that certain evidence should have been
suppressed and he should have been given a hearing on the
motion to suppress, that the superseding indictment was
invalid, that there was insufficient evidence to convict, and
that the jury's conviction of him on two counts was
impermissibly inconsistent with its acquittal of him on two
other counts. There being more than ample evidence to
convict and none of the asserted errors having been
committed, we affirm. Indeed, this is a case in which the
police search was backed by more than the usual, and the
careful efforts by the police to have both belt and
suspenders to support the search marks more, rather than
less, concern for adherence to the procedural protections
afforded defendants.
The Crime
On the evidence, the jury was entitled to find the
following. On August 31, 1994, Calderon heard that two young
men were selling stereo speakers out of a van in his
neighborhood in Nashua, New Hampshire. Emboldened by access
to newly stolen guns, Calderon decided to take the van and
the speakers. Calderon, age 33, recruited three teenagers,
including his nephew Jose Hernandez, to help him. When
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Hernandez originally balked, his uncle excoriated him and
called him a "chicken." The other two recruits, Angel Rivera
and Julio Sanchez, approached the two young stereo salesmen
and asked if they would take them in the van to a nearby
place where they could make a purchase outside of the
presence of police officers who might be looking for them.
Once inside the van, Rivera and Sanchez used a gun and
chokeholds to force the two salesmen to the back of the van,
where they were made to lie, face down. The carjackers
struck one on the head with a gun, causing profuse bleeding,
and told the two men that if they ever went to the police,
they would be hunted down at their homes and killed.
Rivera and Sanchez picked up Calderon in the van,
at his apartment, where he assumed the role of driver.
Hernandez joined the group as the van left the neighborhood.
Because the salesmen were face down, they could not identify
Calderon, but were aware of his presence in the van.
Calderon, who was in charge, gave instructions that "if the
kids get smart or something, . . . smack them around a little
just to calm them down." The van was driven to
Massachusetts. In Lowell, Calderon, a heroin addict, bought
heroin and unloaded some of the speakers. The two "kids"
were held with their faces down for three hours and then
dumped into a wooded ditch in Billerica after one of them was
kicked in the head.
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Calderon's defense at trial was that he simply
accepted a ride to Lowell, where he knew he could buy heroin,
and had no part in the carjacking or kidnapping. A search of
the apartment of Calderon's girlfriend, however, turned up
both the stolen speakers and Calderon.
In the interim, a disquieted Hernandez turned
himself in to the Nashua police and voluntarily cooperated.
The Search
Based on information from a confidential informant
that at least one pair of the stolen speakers was at the
apartment of Carmen Delgado, Calderon's girlfriend, the
police went to Delgado's apartment at 11 p.m. on September 6,
1994. At that time the police had an outstanding warrant for
Calderon's arrest for a failure to appear on a motor vehicle
violation and Calderon was a prime suspect in the kidnapping
and carjacking. The officers had reason to believe that
Calderon was living at the address.
The police knocked and, when Delgado answered the
door, they asked for permission to search. An officer also
read from a consent form. Delgado gave consent. The
officers then asked her to sign the consent form, which she
did. Two of the stolen speakers were in plain sight. In
addition, there was a man in the living room. The man gave a
name, not the name "Jaime Calderon," and four different dates
of birth. An officer stepped outside to look at a photograph
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of Calderon, realized the man was Calderon, and went back in
and arrested him. Not knowing who or what was in the rest of
the apartment, the police searched the remainder. They found
two other speakers, of the type stolen, in a bedroom closet.
A few hours later, the officers obtained a warrant to make a
detailed search of the apartment for weapons and speakers.
Delgado gave the police inconsistent versions of her story to
the effect that the speakers came to her apartment
innocently.
Motion to Suppress
Calderon argues that the district court erred in
denying his motion to suppress evidence without an
evidentiary hearing and that on the merits the motion should
have been granted. The decision to hold an evidentiary
hearing is committed to the discretion of the district court
and our review is for abuse of that discretion. See United
States v. Lewis, 40 F.3d 1325, 1332 (1st Cir. 1994).
Evidentiary hearings on motions to suppress are
required only where a defendant makes a sufficient showing
that the evidence seized was the product of a warrantless
search that does not fall within any exception to the warrant
requirement. Id. The burden is on the defendant to allege
facts, "sufficiently definite, specific, detailed, and
nonconjectural, to enable the court to conclude that a
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substantial claim is presented." Id. (internal quotations
omitted).
Calderon argues that the motion to suppress should
have been granted because Delgado gave no valid consent to
the search, and that it was error for the district court not
to take evidence and grant the motion. Leaving aside the
question of whether Delgado's consent was necessary under the
circumstances,1 we analyze the issue as Calderon has framed
it. Calderon posits that because Delgado primarily speaks
Spanish, she could not have understood what the English-
speaking police were saying in their late night, disorienting
appearance at her apartment. But this is a supposition to
which Calderon gave no flesh when he had the opportunity on
the motion to suppress. Calderon filed no affidavits in
support of the motion, not even from Delgado, on whose state
of mind he now so heavily relies.2 In contrast, the
prosecution, in opposing the motion, provided copies of the
1. For example, the police believed Calderon to be living
with Delgado and had an arrest warrant for Calderon.
"Generally, the police do not need a search warrant to enter
a suspect's home when they have an arrest warrant for the
suspect." United States v. Lauter, 57 F.3d 212, 214 (2d Cir.
1995); see also Payton v. New York, 445 U.S. 573, 603 (1980).
2. On appeal, Calderon asserts for the first time that the
police officers had already crossed the threshold of the
apartment when they asked Delgado for her consent, and that
this was an additional factor showing coercion. The
argument, not having been made before the district court, is
waived. See United States v. Carvell, 74 F.3d 8, , No. 95-
1606, slip op. at 15 (1st Cir. Jan. 19, 1996).
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police reports which told a different story. Delgado gave
the police varying versions of how the speakers came to be in
the apartment. There was no indication that she did not
comprehend the explanation of the consent form or voluntarily
execute it -- indeed, all indications were to the contrary.
Calderon presented no evidence at all that Delgado's will was
"'overborne'" or that she suffered a "'critically impaired
capacity for self-determination.'" United States v.
Wilkinson, 926 F.2d 22, 25 (1st Cir.) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 225 (1973)), cert. denied, 501 U.S.
1211 (1991).
The district court explained its denial of
Calderon's motion to suppress without an evidentiary hearing:
Defendant vaguely claims that Ms.
Delgado's consent was coerced or was
otherwise ineffective, but he offers no
affidavit or statement from Ms. Delgado
to that effect, describes no
circumstances supporting his assertion,
and makes no offer of proof relative to
any other facts that might support his
assertion.
There is no basis to disturb the district court's decision.
Constructive Amendment
Calderon's second argument is that there was a
"constructive amendment" to his indictment, in violation of
his Fifth and Sixth Amendment rights. "The [F]ifth
[A]mendment requires that a defendant be tried only on a
charge made by the grand jury," and the Sixth Amendment
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"requires that the defendant be informed of the nature and
cause of the accusation." United States v. Kelly, 722 F.2d
873, 876 (1st Cir. 1983), cert. denied, 465 U.S. 1070 (1984).
When Calderon was first indicted on September 14, 1994, the
kidnapping charge omitted the phrase "for ransom or reward or
otherwise," a necessary element of the offense. See 18
U.S.C. 1201. Subsequently, the missing phrase was added,
and that superseding indictment was presented to a grand jury
on October 26, 1994, which returned it. And that fact
disposes of Calderon's claim. Cf. United States v. Dunn, 758
F.2d 30, 35 (1st Cir. 1985) (constructive amendment occurs
where "the charging terms of the indictment are altered,
either literally or in effect, by prosecution or court after
the grand jury has last passed on them" (emphasis added;
internal quotations omitted)). A defendant cannot complain
of an improper constructive amendment if the indictment is
actually amended by resubmission to the grand jury.3 Cf.
United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert.
denied, 488 U.S. 852 (1988).
Sufficiency of Evidence
Calderon argues that there was insufficient
evidence for the jury to have found him guilty, and so the
3. Since Calderon's argument that it was error for the
district court to have denied his motion for the transcripts
of the second grand jury sitting is premised on there having
been an improper constructive amendment, we do not address
it.
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district court erred in not granting his motion for acquittal
under Fed. R. Crim. P. 29. "In reviewing a sufficiency of
the evidence claim we look at the evidence in the light most
favorable to the verdict." United States v. Cruz-Kuilan,
F.3d , , Nos. 94-2217 & 95-1390, slip op. at 6 (1st Cir.
Feb. 5, 1996).
The thrust of Calderon's challenge is that the jury
should not have believed the version of the story, contrary
to his, recounted by two of his accomplices and a
confidential informant whose son was in prison. The argument
fails. It was well within the jury's province for it to
choose to believe the testimony of Calderon's accomplices --
in the face of his cross-examination of their characters and
motives -- and to disbelieve Calderon's version of the story.
See id. "Credibility determinations are uniquely within the
jury's province, and we defer to the jury's verdict if the
evidence can support varying inferences." Id. (citations
omitted).
Alleged Verdict Inconsistency
Calderon also argues that his carjacking conviction
cannot stand because he was acquitted of the firearms
possession charges and firearm possession was an essential
element of the carjacking offense. In criminal law "the
Supreme Court has made it clear that verdict inconsistency in
itself is not a sufficient basis for vacating a conviction."
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United States v. Lopez, 944 F.2d 33, 41 (1st Cir. 1991)
(citing United States v. Powell, 469 U.S. 57 (1984), and Dunn
v. United States, 284 U.S. 390 (1932)).
This Court explained in Lopez:
Verdict inconsistency does not indicate
that the government necessarily failed to
prove an essential element of its case
beyond a reasonable doubt. . . . We
cannot necessarily assume[] that the
acquittal . . . was proper -- the one the
jury really meant. It is equally
possible that the jury, convinced of
guilt, properly reached its conclusion on
[one] offense, and then through mistake,
compromise, or lenity, arrived at an
inconsistent conclusion on the [other]
offense. As long as the trial and
appellate courts are convinced on
independent review that there was
sufficient evidence to sustain a rational
verdict of guilt beyond a reasonable
doubt, the defendant is properly
protected against any risk of injustice
resulting from jury irrationality.
Id. (citations and internal quotations omitted). Because
Calderon's conviction was supported by sufficient evidence,
the challenge based on alleged verdict inconsistency fails.
Affirmed.
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