United States v. Sepulveda

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2255

UNITED STATES OF AMERICA,
Appellee,

v.
JUAN SEPULVEDA,

Defendant, Appellant.

No. 95-2256
UNITED STATES OF AMERICA,

Appellee,
v.

JUAN VELASQUEZ,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

William T. Murphy, by Appointment of the Court, for appellant

Juan Sepulveda.
Stephen J. Weymouth, by Appointment of the Court, for appellant

Juan Velasquez.
Sheldon Whitehouse, United States Attorney, with whom Stephanie

S. Browne, Assistant United States Attorney, was on brief for the

United States.

December 30, 1996

BOUDIN, Circuit Judge. On February 14, 1995, acting on

an informant's tip that two Hispanic males were selling crack

through a side window, police detectives in Providence, Rhode

Island staked out the designated first-floor apartment. The

officers saw an unusual number of visitors going to and from

the side of the building, remaining only briefly. After

watching for an hour, an undercover detective approached one

side window, was directed to a different side window partly

covered with plywood and purchased two "rocks" of cocaine

base ("crack"), paying with two marked $20 bills.

The police then forcibly entered the apartment and found

four men inside, including appellants Juan Sepulveda and Juan

Velasquez. The apartment was unfurnished, with no signs of

personal drug use by the occupants. The undercover detective

identified Velasquez as the seller. Sepulveda's pants

pockets contained plastic bags of powder cocaine and of

crack, and a bundle of cash (including the two marked $20

bills from the earlier purchase). The police also found a

sawed-off rifle which proved to be unregistered.

Both Velasquez and Sepulveda were charged with a panoply

of drug and weapons offenses. The case proceeded to trial in

June 1995 under a redacted five-count indictment: count I

charged the defendants with conspiracy to distribute, and to

possess with intent to distribute crack. 21 U.S.C.

841(a)(1). Counts II and III, respectively, alleged

-2-
-2-

distribution of crack and possession of crack with intent to

distribute. Id. Count IV charged the use of a firearm

during a drug trafficking crime, 18 U.S.C. 924(c)(1), and

count V alleged possession of an unregistered sawed-off

rifle. 26 U.S.C. 5841, 5861(d), 5871. After a four-day

trial, the jury found both defendants guilty on all five

counts.

In October 1995, the district judge sentenced Sepulveda

to 70 months' imprisonment on counts I, II, III, and V, and

Velasquez to 78 months on those same counts. Both defendants

were also given a mandatory consecutive 10-year sentence

under count IV; but the government and the defendants now

stipulate that the conviction and sentence under count IV

have been undermined by Bailey v. United States, 116 S. Ct.

501 (1995). The appeals are directed to the remaining four

counts.

I.

We begin with the more substantial of the challenges to

the convictions. First, Sepulveda asserts that the search of

his person by police officers immediately prior to his arrest

was unlawful because it was executed without a warrant or

probable cause and exceeded the lawful scope of a protective

frisk for weapons. Accordingly, Sepulveda says that the

drugs and cash discovered in his pockets should have been

suppressed, and that the remaining evidence is not enough to

-3-
-3-

support his conviction. The government argues that Sepulveda

waived this issue by not raising it in the district court.

At a suppression hearing on June 16, 1995, the district

court ruled that the apartment search was based on probable

cause and that exigent circumstances--namely, the risk that

contraband might be destroyed--justified entry without

awaiting a warrant. Whether Sepulveda separately disputed

the search of his person, and whether the district court

intended its reasoning to cover this search as well, is not

entirely clear. Since the facts are undisputed and we review

probable cause decisions de novo, Ornelas v. United States,

116 S. Ct. 1657, 1663 (1996), the easiest course is for us to

decide ourselves whether the search of Sepulveda himself was

valid.

The police had ample cause to arrest Velasquez, but

probable cause must exist for each person arrested, and "mere

propinquity to others independently suspected of criminal

activity does not, without more, give rise to probable cause

to search that person." Ybarra v. Illinois, 444 U.S. 85, 91

(1979). The government does not argue that a mere protective

frisk of Sepulveda would have produced the money as well as

the drugs, so the question is whether the circumstances

provided probable cause to arrest--and therefore to search--

Sepulveda. United States v. Martinez-Molina, 64 F.3d 179,

726 (1st Cir. 1995).

-4-
-4-

The apartment in this case was unfurnished and partly

boarded up. There is no indication that it was used for any

purpose other than distribution of drugs. The numerous walk-

up sales the police had observed confirmed that the apartment

was being used for drug distribution and strongly suggested

that everyone in the apartment knew of this activity. See

Martinez-Molina, 64 F.3d at 729. It is only a short step to

suppose that those present in the otherwise vacant apartment

were probably drug dealers or purchasers.

The D.C. Circuit encountered similar facts in United

States v. Holder, 990 F.2d 1327, 1329 (D.C. Cir. 1993).

After entering an apartment and finding evidence of drug

distribution, the police arrested the individuals found

inside. The court upheld the arrest of a defendant who

claimed to be a bystander, saying that the open nature of the

drug sale activity in the apartment gave rise to a reasonable

inference that each occupant was involved in the drug trade--

either as an accomplice in the drug sales or as a customer.

Id. at 1329.

To be sure, Sepulveda might have been an innocent

visitor. But probable cause requires only that the police

have "reasonable grounds to believe" that Sepulveda had

committed the crime. See United States v. Melvin, 596 F.2d

492, 495 (1st Cir. 1979). The facts of this case persuade us

that there was ample reason for the police to think that

-5-
-5-

Sepulveda was engaged in a felony. Given probable cause

prior to the search, it is irrelevant that the formal arrest

may have followed the search. Rawlings v. Kentucky, 448 U.S.

98, 111 & n.6 (1980).

Second, Velasquez argues that the district court erred

in the jury instructions by failing to tell the jury,

according to his brief on appeal, "that it could not base a

conviction of possession with intent to distribute cocaine

base under count III on the same conduct that formed the

basis for the distribution count (Count II)." The government

says (correctly) that Velasquez did little to explain his

"concern" to the district court, making no request for any

specific curative language. The objection was as follows.

I have a concern as it deals with the charge of
possession with intent to sell--distribute. The
Court knows, based on the evidence that it is
alleged that there was a quantity of contraband
allegedly in Mr. Sepulveda's pocket. I am
concerned just based on the charge as it pertains
to the definition that the Court instructed, as it
pertains to the possession with intent to
distribute, that the jury may in fact confuse that
with the delivery. In other words, your Honor, I'm
concerned that by virtue of the fact that we have a
delivery charge and we have a possession with
intent to distribute charge, I'm concerned that the
jury may confuse them or think that they are in
fact one and the same.

A request for specific curative language may sometimes

be needed to convey the substance of a requested addition or

correction to the charge, and the absence of a specific

request may prove fatal. E.g., Parker v. Nashua, 76 F.3d 9,

-6-
-6-

12 (1st Cir. 1996). Still, one can imagine cases where some

other formula might, in context, convey all of the needed

information (e.g., "I object to the definition of

`possession' because . . . ."). Here, based on the district

judge's response, we think it is unclear that the district

judge understood the objection to be the "same conduct" claim

that Velasquez is now pressing on appeal.

In any event, to the extent we understand the objection

now, it appears to us to be ill-founded. Explaining why

requires some background. Under Blockburger v. United

States, 284 U.S. 299 (1932), a defendant can be convicted of

two differently defined offenses, based on the same core of

facts, so long as each offense requires an element that the

other does not. Id. at 304. The offense of distribution

obviously does require an element not required for the crime

of possession with intent, namely, the act of distribution.

It is possible--albeit unusual--to be guilty of

distribution of a drug without also possessing it with intent

to distribute. Someone who participates in a drug transfer-

-e.g., as a broker or armed guard--can be liable for

distribution without ever possessing the drugs. See, e.g.,

United States v. Brunty, 701 F.2d 1375, 1381 & n.16 (11th

Cir. 1983). While "possession" is certainly helpful in

proving distribution, it is technically not a necessary

element. United States v. Tejada, 886 F.2d 483, 490 (1st

-7-
-7-

Cir. 1989). Compare 2 Sand et al., Modern Federal Jury

Instructions, 56-24 to 56-26, 56-4 (1992).

But satisfying Blockburger has not wholly satisfied the

circuit courts. Where the evidence shows only that a

defendant handed over a packet of drugs, some courts have

balked at the idea that Congress intended to allow a

conviction both for possession with intent and for

distribution. E.g., United States v. Meredith, 824 F.2d

1418, 1426 (4th Cir. 1987). Other circuits have said that

conviction on both counts is permitted, but that a defendant

may only be sentenced on one. See, e.g., United States v.

Palafox, 764 F.2d 558, 562 (9th Cir. 1985).

By contrast, this court, following the Fifth Circuit,

United States v. Zabaneh, 837 F.2d 1249, 1257 (5th Cir.

1988), has said that "the offenses merge only where the

distribution itself is the sole evidence of possession, or

where possession is shown to exist only at the moment of

distribution," United States v. Rodriguez-Cardona, 924 F.2d

1148, 1159 (1st Cir. 1991), and we have also made clear that

a defendant could be convicted of both offenses, with respect

to the same drug, so long as there was proof that he

possessed the drug (with intent to distribute) at some point

earlier than the distribution itself. Tejada, 886 F.2d at

490.

-8-
-8-

It is doubtful that the game (reflected in these various

distinctions drawn by the circuits) is worth the candle where

both offenses are prosecuted at the same time. In most

configurations, the guidelines will assure that the sentence

is the same for one or both, save for the $50 mandatory

assessment. U.S.S.G. 3D1.1, 3D1.3 (Nov. 1994). And so

far as we can tell, only the $50 assessment is at issue here.

But based on this stake alone, Rutledge v. United States, 116

S. Ct. 1241, 1247 (1996), prevents us from treating the issue

as moot.

In any event, the disagreement between the circuits is

irrelevant here, as is the narrower concern that prompted

this court in Tejada and Rodriguez-Cardona. Velasquez was

plainly shown to have distributed two rocks that he sold

through the window to the detective. It is scarcely less

clear that the jury regarded Velasquez as constructively

possessing with intent to distribute quite separate packages

of crack that Sepulveda had in his pocket. Thus, Velasquez

was guilty of both crimes based upon different drugs.

The constructive possession finding is inference but

almost inescapable. By convicting Sepulveda of distribution

and finding both defendants liable of possessing the same

gun, the jury made clear its view that both men were partners

in the same criminal enterprise, a view borne out not only by

circumstances but by Sepulveda's possession of the marked

-9-
-9-

bills handed to Velasquez through the window. On this basis,

it follows that Velasquez was also liable on the possession

charge for the crack carried by Sepulveda.

II.

Velasquez challenges his sentence on several grounds.

The most important ground concerns the treatment of the cash

found in Sepulveda's pockets; the district court treated the

entire amount as proceeds from the sale of crack. Velasquez

argues that the cash should not have been converted into an

equivalent quantity of drugs at all and, if converted, should

have been treated as proceeds of powder cocaine.

When the police searched Sepulveda, they discovered in

his pockets $335 in cash, five plastic bags of crack and

three plastic bags of powder cocaine. The cash included the

two marked $20 bills that the detective had exchanged for two

"rocks" of crack, leaving $295. The probation officer said

that this remaining amount likely represented the proceeds of

prior crack sales but, to give "the benefit of the doubt" to

the defendants, recommended that the cash be converted into

an equivalent of powder cocaine rather than crack.

The government objected vigorously. It argued that the

convictions were for crack, that powder cocaine counts had

been dropped (because the amount of powder did not warrant an

inference of possession with intent), and that "all of the

facts" pointed to crack distribution and none to powder

-10-
-10-

cocaine. The probation officer replied that there was

"perhaps[] a greater likelihood that the seized money

represented the proceeds from prior sales of crack cocaine";

but the presence of three bags of powder persuaded the

probation officer to stand by her earlier recommendation.

At the sentencing, the government pressed its objection,

arguing that the $295 should be translated into crack, and

the district court sided with the government. As crack is

punished much more seriously than cocaine powder, see United

States v. Armstrong, 116 S. Ct. 1480, 1492 (1996) (Stevens,

J., dissenting), the effect of the court's ruling (based on

calculations that we need not describe because they are not

disputed) was to increase the base offense level on the drug

counts from 18 to 26. The district court then sentenced

Velasquez to the minimum permitted by the guideline range for

level 26 and his criminal history category of III, namely, 78

months.

There is nothing to Velasquez' primary objection in the

district court, renewed on appeal, that the $295 should not

be converted into drugs at all. A reasonable factfinder

could conclude that it was more likely than not that

Sepulveda and Velasquez were partners in a drug operation,

Sepulveda holding the drugs and money and Velasquez

completing the transactions at the side window. The co-

mingling of the $40 in marked bills, and the lack of any

-11-
-11-

other obvious source for the $295, made it reasonable to

attribute the money to drug dealing properly included in the

sentence. See United States v. Gerante, 891 F.2d 364, 368-69

(1st Cir. 1989).

The more difficult question is whether the $295 should

all be treated as proceeds of crack transactions or should be

treated as powder, which Velasquez now urges as a fall-back

position. The government says that Velasquez did not urge

this alternative in the district court where, needless to

say, his main argument was against treating the money as drug

proceeds at all. But the alternative of treating the money

as powder sales was presented by the presentence report and

squarely rejected by the district judge in favor of treating

the money as proceeds from crack.

In arguing for the probation officer's solution,

Velasquez invokes our own admonition that courts must "err on

the side of caution" in choosing among a number of plausible

estimates of drug quantity. United States v. Jackson, 3 F.3d

506, 510 (1st Cir. 1993); United States v. Sklar, 920 F.2d

107, 113 (1st Cir. 1990). But this "caution" has a more

precise office that is best understood by quoting directly

from the opinion from which Jackson and Sklar borrowed the

quoted language:

If the exact amount cannot be determined, an
estimate will suffice, but here also a
preponderance of the evidence must support the
estimate. Thus when choosing between a number of

-12-
-12-

plausible estimates of drug quantity, none of which

is more likely than not the correct quantity, a

court must err on the side of caution.

United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)

(emphasis added).

Walton's caution would apply if (for example) the

district court had found that the $295 might represent sales

of crack or, to an equal likelihood, might represent sales of

both crack and powder. But here the district court found

that the money all represented crack sales. The court was

obviously making a submerged judgment about probabilities

(only the defendants know for sure); but it plainly thought

that the finding it made was more likely than not to be true.

The standard of review on this issue is "clear error."

Gerante, 891 F.2d at 368. Based on the facts already

recited, we think there is no way to describe the district

court's determination as irrational, highly speculative, or

without a basis in the evidence. The money was found in the

hands of persons who had been identified in advance as crack

dealers, had crack in their possession and had just completed

a sale to the police of crack. There was no direct evidence

of powder sales at all.

The district court could certainly have taken a

different view of the matter. The defendants did have three

bags of powder cocaine, suggesting that they might be in both

lines of business. And, while the government pointed to the

-13-
-13-

smallness of the amount of powder, conflicting inferences of

this kind are matters to be weighed by the trier of fact.

But that is precisely the point: it was for the district

court to make these judgments and absent a clear mistake, we

have no warrant to intervene.

III.

The defendants make several other claims that

require no detailed discussion. Velasquez says that the

evidence was inadequate to support convictions on any of the

remaining counts and Sepulveda makes the same claim as to

count V. The facts already recounted make it plain that

there was ample evidence to convict both defendants on the

drug counts, and we are not going to waste time on this

issue.

The evidence as to the weapon, which underpinned the two

gun counts, has not been recounted but was also sufficient.

Inside the apartment, the police found an opening in the

ceiling through which the butt of a gun could be seen. The

gun proved to be a fully operational sawed-off rifle. The

location was within an arm's length of the barricaded window

through which the sale had been made to the detective, and

the butt could be reached easily by someone of average height

standing inside the apartment at the window.

Given the circumstances--the vacant apartment, the

actual sale, the additional drugs carried by Sepulveda--a

-14-
-14-

reasonable jury could easily infer that the apartment was the

base used by Sepulveda and Velasquez to retail their drugs.

From the placement of the weapon, it could also be reasonably

inferred that the defendants kept it there, well positioned

and available, for potential use in overawing an unruly

customer or confronting a rival dealer. In short, the weapon

could be attributed to the defendants and, coupled with

evidence that the rifle was unregistered, this was enough to

convict. See U.S.C. 5841, 5861(d), and 5871.

The same evidence was also used to convict the

defendants on the "use or carry" charge under U.S.C.

924(c)(1). As to this count, the government's theory, and

the jury instructions, were based on our pre-Bailey decisions

which defined "use" more broadly than is now permissible.

The government and defendants have already stipulated that

the convictions of both defendants must be reversed under

Bailey, together with the mandatory consecutive sentence

imposed on this count. We agree.

The convictions and sentences on counts I-III and V are

affirmed, the convictions and sentences on count IV is

reversed, and the matter is remanded to the district court

for proceedings consistent with this decision.

It is so ordered.

-15-
-15-