United States Court of Appeals
For the First Circuit
No. 98-1643
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
RAYMOND HERNANDEZ-ALBINO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Peter Goldberger with whom Pamela A. Wilk was on brief for
appellant.
Camille Velez-Rive, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, and John Teakell, Assistant
United States Attorney, were on brief for appellee.
May 20, 1999
COFFIN, Senior Circuit Judge. The government arrested
defendant-appellant Raymond Hernndez Albino ("Hernndez") and
several other men in a drug sting in Arecibo, Puerto Rico.
Hernndez was indicted, tried, convicted and sentenced. On appeal,
he argues that the court made a series of mistakes both during
trial and at sentencing. We are unpersuaded by his claims of error
and affirm.
I. Background
Testimony at trial revealed the following: On April 17,
1997, two government informants contacted Armando Cabrera Vargas
("Cabrera") regarding the sale of a number of kilograms of cocaine.
Cabrera, in turn, went to see Orlando Ramirez Ortiz ("Ramirez"),
and introduced Ramirez to the government informants. With Cabrera
acting as middleman, the parties agreed that Ramirez would purchase
seven kilograms of cocaine for $123,500.
Ramirez's problem was that he did not actually have that
much money, so he approached his long-time friend Hernndez for a
loan for Ramirez's "business." When Hernndez asked for more
details, Ramirez offered vague assurances that he was sure of what
he was doing and that the money would be repaid. Although
Hernndez was reluctant to lend this sizeable amount of capital
without knowing the specifics of the business deal, he agreed to
the transaction after Ramirez pledged his house and business as
collateral. On April 23, 1997, the day the drug deal was to take
place, Ramirez finally informed Hernndez that the money was being
used to purchase cocaine. When pressed at trial by prosecutors,
Ramirez conceded that Hernndez, still unsure about whether the
transaction would be consummated, demanded to be present and carry
the money.
When the time came, Ramirez called Hernndez and told him
to come to the back of the Villa Real Hotel, where the exchange was
to take place. When Hernndez arrived in his Toyota 4Runner truck,
Ramirez got in and inspected the money, which was in a sports gear
bag. At that moment, one of the informants selling the drugs
called Ramirez on his cellular phone and instructed Ramirez to
drive to the front of the hotel. In front of the hotel the
informant approached Hernndez's truck, and told Hernndez and
Ramirez that "the Colombian" drug supplier (in reality an
undercover government agent named Roln) wanted to come check out
the money. When Hernndez inquired, Ramirez explained that Roln
owned the cocaine. Roln inspected the money and departed
allegedly to retrieve the drugs. Instead, he gave other agents the
signal to arrest Hernndez and Ramirez.
When Hernndez was arrested, agents discovered in his
waistband a concealed 9 millimeter handgun, which he had a valid
permit to carry. The agents did not thoroughly search the vehicle
at the scene but during a later inventory search found a different
9 millimeter gun with an obliterated serial number under the front
passenger seat where Ramirez had been sitting.
Hernandez was indicted on three counts: 1) conspiracy to
possess the seven kilograms of cocaine with the intent to
distribute; 2) carrying a firearm during and in relation to the
drug crime; and 3) possessing the gun with the obliterated serial
number. Hernandez pled not guilty to all three charges.
Ramirez and Cabrera were also indicted, but both pled
guilty and agreed to cooperate with the government in return for
the government's promise to recommend leniency in sentencing.
During a three day trial in mid-November 1997, the government
called Ramirez as a witness. While Ramirez was on the stand, the
court found him at times reluctant to testify and unresponsive to
the government's questions, so it permitted the prosecutors to ask
certain leading questions.
The case was eventually sent to the jury, and it began
deliberating. Approximately two and one half hours later, the jury
sent a note to the judge saying that "[t]he jury has not been able
to come to a guilty or not guilty verdict. We are at an impasse."
The judge consulted with counsel, and sent the following response,
to which counsel did not object:
All of you are equally honest and
conscientious jurors who have heard the same
evidence. All of you share an equal desire to
arrive at a verdict. Each of you should ask
yourself whether you should question the
correctness of your present position. I
remind you that in your deliberations you are
to consider the instructions as a whole.
Please continue the deliberations.
After deliberating for another hour, the jury found Hernndez
guilty of both count 1, conspiracy to possess cocaine with the
intent to distribute, and count 2, possession of a gun during and
in relation to a drug crime, but acquitted him on count 3,
possession of the gun found under Ramirez's seat.
Hernndez was subsequently sentenced to 181 months of
imprisonment to be followed by five years of supervised release,
and a special assessment of $200. This appeal ensued.
II. Discussion
Hernndez argues that his conviction and sentence were
improper due to a number of alleged errors. While none of his
claims is meritorious, three are worthy of developed consideration.
A. The court's supplemental charge
Hernndez claims that the court erred when it responded
to the jury's impasse with the supplemental jury instruction, often
described as a "dynamite" charge or an Allen charge, after Allen v.
United States, 164 U.S. 492 (1896). Counsel did not object at the
time, and hence we review only for plain error. See Fed. R. Crim.
P. 52(b); United States v. Bradstreet, 135 F.3d 46, 50 (1st Cir.
1998).
Plain error analysis requires four steps. First, an
error must have been committed. United States v. Olano, 507 U.S.
725, 732-33 (1993). Second, the error must be plain or obvious.
Id. at 734. Third, the plain error must "affect[] substantial
rights," Fed. R. Crim. P. 52(b), which generally means that it must
have been prejudicial, see Olano, 507 U.S. at 734. Finally,
because Rule 52(b) is discretionary, we must be convinced that the
error "'seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings[]'" before we will order a new
trial. Id. at 736 (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)).
i. The Error. Any supplemental instruction in response
to a jury's deadlock can have a significant coercive effect by
intimating that some jury members should capitulate to others'
views, or by suggesting that the members should compromise their
rational positions in order to reach an agreement. See United
States v. Angiulo, 485 F.2d 37, 39 (1st Cir. 1973). Although
federal courts have long sanctioned the use of supplemental charges
in the face of an apparent impasse, see Lowenfield v. Phelps, 484
U.S. 231, 237 (1988), we have warned that such action should be
undertaken with "great caution and only when absolutely necessary,"
United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971).
Concerned about the instruction's potentially coercive
effect, we have required that it contain three specific elements to
moderate any prejudice. See United States v. Paniagua-Ramos, 135
F.3d 193, 197 (1st Cir. 1998). First, in order that the burden of
reconsideration is not shouldered exclusively by those jury members
holding the minority view, the court should expressly instruct both
the minority and the majority to reexamine their positions. See
Angiulo, 485 F.2d at 39. Second, the instruction should
acknowledge that the jury has the right not to agree. See Jenkins
v. United States, 380 U.S. 445, 446 (1965) (per curiam). Third,
the court should remind the jury that the burden of proving guilt
beyond a reasonable doubt remains, as always, with the government.
See Paniagua-Ramos, 135 F.3d at 197.
The charge at issue did not meet these criteria. While
it could be argued that the first element was satisfied because
each person was instructed to question the correctness of his or
her position, the instruction did not address either of the other
two requirements in any manner whatsoever. Although we have
consistently refrained from offering any definite wording for an
Allen charge, the instruction should have referenced in some way
all three essential elements. The court's failure to do so was
error.
The government presents a somewhat tautological argument
in response. It claims that the omission of two elements was not
erroneous because the instruction was not an Allen charge, and it
was not an Allen charge because it did not follow the accepted
format, i.e., it did not contain all three elements. In addition
to protecting any supplemental instruction such as this one from
judicial review for consistency with the three Allen criteria, the
government's argument ignores our explicit ruling that "any
supplemental instruction which urges the jury to return to its
deliberations must include the three balancing elements stated
above." Angiulo, 485 F.2d at 40 (emphasis added).
ii. The Clarity of the Error. It is equally obvious that
the second requirement, i.e., that the error is clear, has also
been met. We first discussed the three elements in Flannery in
1971, and have followed them with unwavering devotion ever since.
We have addressed them on a number of occasions, even describing
them as "essential," United States v. Vachon, 869 F.2d 653, 659
(1st Cir. 1989). The district court's failure to mention either of
the last two elements constituted plain error.
iii. Affecting substantial rights. Although the error
was plain, we may not reverse Hernndez's conviction and order a
new trial unless the error "affect[ed] substantial rights." Fed.
R. Crim. P. 52(b). In a challenge to an improper Allen charge, the
relevant inquiry revolves around whether the charge "in its context
and under all the circumstances" coerced the jury into convicting
him. Lowenfield, 484 U.S. at 237. Hernndez's counsel below
admitted that the charge was "not coercive in the least." We
agree, based on both the length of deliberations after the Allen
charge and the verdict's internal consistency. See United States
v. Plunk, 153 F.3d 1011, 1027 (9th Cir. 1998); Paniagua-Ramos, 135
F.3d at 199.
The length of deliberations in this case negates any
suggestion of coercion. The jury's task was relatively
straightforward. The government claimed Hernndez joined Cabrera's
and Ramirez's drug conspiracy because Hernndez lent Ramirez the
money after learning that it would be used to purchase drugs.
Hernndez's defense was that he was "merely present" when the drug
deal occurred. Deciding which version of events to believe was a
relatively uncomplicated exercise. It appears that the jury
recognized as much and seemed to expect that deliberations would be
swift: they complained of an impasse after deliberating for only
two and one half hours. After the judge sent the written
supplemental instruction, the jury deliberated for another hour.
Numerous courts have found no coercion under similar
circumstances. See Green v. French, 143 F.3d 865, 886 (4th Cir.
1998) (concluding that a one hour deliberation after a supplemental
Allen instruction failed to suggest coercion); United States v.
Hernandez, 105 F.3d 1330, 1334 (9th Cir. 1997) (stating that
deliberations of 40 minutes after Allen charge did not "raise the
specter of coercion"); United States v. Smith, 635 F.2d 716, 721-22
(8th Cir. 1980) (finding no coercion when jury deliberated forty-
five minutes after Allen charge, in addition to previous three hour
total deliberations). We note, however, that these cases do not
establish a formula, but rather are illustrative of the principle
that sufficient additional time can help to establish an absence of
coercion. That principle is particularly applicable in this case,
where the total time of deliberation was roughly 3 hours, of which
the deliberations after the Allen charge represented almost one
third.
The other relevant circumstance in this case, namely, the
verdict's internal consistency, also implies an absence of
coercion. As noted earlier, Hernndez was convicted of conspiring
to possess cocaine with the intent to distribute. He was also
convicted of possession of a gun, either the one on his person or
the one under Ramirez's seat, during and in relation to the drug
crime. Finally, he was acquitted of possessing the gun with an
obliterated serial number which was found underneath Ramirez's
seat. The jury's verdict indicates that it found Hernndez guilty
of the drug crime and of possession of his own gun, but rejected
the government's argument that he constructively possessed the
firearm under Ramirez's seat. The internal consistency of this
result suggests a nuanced analysis and reasoned decision. See
Plunk, 153 F.3d at 1027 (concluding that "the fact that the jury
rendered a mixed verdict [on independent counts] . . . suggests
that it reviewed the evidence rationally and independently"); cf.
Paniagua-Ramos, 135 F.3d at 199 (finding confusion when jury
convicted defendant of conspiracy but acquitted him on the
underlying substantive charge, because evidence suggested defendant
was either innocent of both or guilty of both).
Because the jury was not coerced, the court's error did
not affect Hernndez's substantial rights, and we will not reverse
his conviction due to the erroneous Allen charge.
B. Carrying a gun "during and in relation to" a drug crime
Hernndez challenges two related aspects of the jury
instructions on count two, namely, the failure to give a specific
unanimity charge on which gun was carried, and the omission of the
words "knowing" and "in relation to" from certain portions of the
instructions.
i. Unanimity on which gun was carried. Hernndez claims
that the court committed plain error because the jury was not
instructed that it had to agree which gun Hernndez carried before
he could be convicted. Raised for the first time on appeal, this
claim is also reviewed for plain error.
In this case no error was committed. The court was not
required to give a specific unanimity instruction because the jury,
in fact, was not required to agree on the specific gun carried.
Although Federal Rule of Criminal Procedure 31(a) requires that a
criminal conviction be unanimous, the jury need not necessarily
agree on the facts underlying that conviction. See United States
v. Tarvers, 833 F.2d 1068, 1074 (1st Cir. 1987) (unanimity
generally not required with respect to a specific act underlying an
element of a charged offense). When the government alleges in a
single count that the defendant committed the offense by one or
more specified means, the Supreme Court has "never suggested that
in returning general verdicts in such cases the jurors should be
required to agree on a single means of commission, any more than
the indictments were required to specify one alone." Schad v.
Arizona, 501 U.S. 624, 631 (1991); see also United States v.
Reeder, 170 F.3d 93, 105 (1st Cir. 1999) (noting that the jury must
agree that the government has proven all the elements of an offense
beyond a reasonable doubt, but "it need not agree on the means by
which all the elements were accomplished").
Although unanimity is required when such a determination
matters for sentencing purposes, see United States v. Melvin, 27
F.3d 710, 715 (1st Cir. 1994) (finding enhanced mandatory sentence
resulting from one particular firearm not supportable when the jury
might have concluded that defendant possessed a different firearm
not subject to the enhancement), the jury need not reach unanimous
agreement on the identity of the weapon when the defendant is
charged with violating 924(c) due to possession of more than one
firearm and none of the weapons justifies more than the statutory
minimum sentence. See United States v. Correa-Ventura, 6 F.3d
1070, 1075-87 (5th Cir. 1993) (concluding that specific unanimity
was not required when 924(c) conviction could have been based on
any one of ten weapons seized).
ii. Omission of "knowing" and "in relation to" during
instructions. Next, Hernndez argues that the court committed
plain error by omitting both "knowing" and "in relation to" from
the instructions. He argues that his licensed pistol had no
relationship to the drug offense and that he did not knowingly
carry the weapon found under Ramirez's seat. Consequently, the
instructions allowed the jury to convict him either for his routine
possession of a concealed weapon as authorized by his permit or
without knowing the gun was under Ramirez's seat.
The court instructed the jury as follows:
Now, Count Two of the indictment charges the
defendant with carrying a pistol or firearm
during and in relation to a drug trafficking
transaction.
. . .
Now, two essential elements are required to be
proved beyond a reasonable doubt in order to
establish the offense charged in Count Two of
the indictment. And these are as follows:
First, that the defendant committed a drug
trafficking crime for which he may be
prosecuted in a court of the United States.
And second, that during the commission of that
crime, the defendant carried a firearm.
The fact that a person may have a permit to
carry a weapon is irrelevant in this matter.
The issue is whether the firearm was carried
during and in relation to the commission of
the crime.
Hernndez's counsel failed to object to this instruction, and it is
also reviewed for plain error.
When presented with a strikingly similar situation in
United States v. Luciano-Mosquera, 63 F.3d 1142, 1156 (1st Cir.
1995), we found that the omission of "in relation to" did not
constitute plain error. However, Hernndez argues that Luciano-
Mosquera was decided before the Supreme Court's decision in United
States v. Johnson, 520 U.S. 461 (1997), in which the Court found
the omission of an element of an offense to be plainly erroneous.
The government asserts, in response, that the court used the phrase
"in relation to" both before identifying the specific elements and
after, when it said that the "issue is whether the firearm was
carried during and in relation to the commission of the crime."
Rather than wade into the murky waters of defining the elements of
this crime, cf. United States v. Munoz, 143 F.3d 632, 637 (2d Cir.
1998) (discussing a challenge to "the 'in relation to' element of
924(c)(1)"); United States v. Currier, 151 F.3d 39, 41 (1st Cir.
1997) (describing "during and in relation to" as a single element),
we will assume, arguendo, both that the court's failure to mention
it as a separate element was error and that the error was plain.
Here again Hernndez has failed to meet his burden of
proving that his substantial rights were affected. See Olano, 507
U.S. at 734 ("It is the defendant rather than the Government who
bears the burden of persuasion with respect to prejudice."). To
demonstrate prejudice Hernndez must show that the court's omission
affected the outcome of the trial. See id. We are convinced that
the outcome was not affected, and the result would have been
precisely the same. First, the jury found that he was an active
participant in the drug deal, and rejected his "mere presence"
defense. Second, it was undisputed that he was carrying a
concealed weapon, albeit with a permit. Third, apart from the
existence of the permit itself, there was no reason to believe that
the gun was not "in relation to" the drug crime. The jury heard no
evidence that he routinely carried the gun for self-protection, or,
for that matter, that he had ever carried it on any other occasion.
Especially in light of the court's mentioning "in relation to"
earlier, and its final statement that the "issue is whether the
firearm was carried during and in relation to the commission of the
crime," Hernndez has failed to convince us that, had the court
repeated the "in relation to" requirement as a explicit element,
the jury would not have convicted him of possessing his weapon
during and in relation to the drug crime.
He also claims that the court failed to include a
knowledge requirement in its instruction, and the jury therefore
could have convicted him of carrying the gun under Ramirez's seat
even though he was unaware of it. The simple response to this
contention is that the statute does not include an explicit
knowledge requirement, undoubtedly because it would be redundant.
The statute applies an additional punishment for "any person who,
during and in relation to any crime of violence or drug trafficking
crime . . . uses or carries a firearm[.]" 18 U.S.C. 924(c)(1).
The fact that the gun is carried "in relation to" the drug crime
requires that the defendant have an identified reason for carrying
the weapon. See Smith v. United States, 508 U.S. 223, 238 (1993)
("The phrase 'in relation to' thus, at a minimum, clarifies that
the firearm must have some purpose or effect with respect to the
drug trafficking crime; its presence or involvement cannot be the
result of accident or coincidence."). It is logically impossible
for an individual to carry something for a specified purpose
without knowingly carrying it. See United States v. Padilla, 751
F. Supp. 761 (N.D. Ill. 1990) (noting that 924(c)(1)'s terms
"necessarily include a knowledge element"). If the jury found that
he had constructively carried the gun under Ramirez's seat "in
relation to" the drug transaction, by definition it determined that
he knowingly carried it.
C. Ramirez's leniency in return for cooperation
Relying on United States v. Singleton, 144 F.3d 1343
(10th Cir. 1998) ("Singleton I"), Hernndez argues that his
conviction was improper because the government violated the anti-
bribery statute, 18 U.S.C. 201(c)(2), by promising something of
value to Ramirez, namely, a lenient sentence recommendation, in
return for his testimony against Hernndez.
This argument was not raised in the district court, and
is subject to review only for plain error. See Fed. R. Crim. P.
52(b). "At a minimum, [a] court of appeals cannot correct an error
pursuant to Rule 52(b) unless the error is clear under current
law." Olano, 507 U.S. at 734.
At the time of Hernndez's conviction in November 1997,
no court had yet found a promise of leniency by the government in
return for cooperation to be a violation of the anti-bribery
statute. Singleton I, issued the following year, was viewed as a
significant departure from existing precedent, was roundly
questioned, and was swiftly vacated and reversed en banc. See
United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en
banc) ("Singleton II"). Every circuit and virtually every court
facing the issue has criticized Singleton I's reasoning. See,
e.g., United States v. Condon, 170 F.3d. 687, 688-89 (7th Cir.
1999) United States v. Ramsey, 165 F.3d 980, 986 (D.C. Cir. 1999);
United States v. Lowery, 166 F.3d 1119, 1123 (11th Cir. 1999); but
see United States v. Fraguela, 1998 WL 560352 (E.D. La. Aug. 27,
1998), vacated on other grounds, 1998 WL 910219 (E.D. La. Oct. 7,
1998). In light of the lack of any previous caselaw, and the
overwhelming condemnation of Singleton I, it is beyond question
that Singleton I's holding is not "clear under current law."
Consequently, the court did not commit plain error in admitting
Ramirez's testimony.D. Other claims of error
Hernndez presents four other bases on which we might
rule that his conviction and sentence were improper. Because we
are entirely unpersuaded by these other arguments, we decline to
address any of them in more than a brief comment.
Hernndez posits that the district court improperly
denied his motion to suppress the 9 millimeter gun found under the
passenger seat. Warrantless inventory searches must be conducted
according to standardized procedures. See United States v.
Infante-Ruiz, 13 F.3d 498, 503 (1st Cir. 1994). The court found
that the government followed official Drug Enforcement
Administration policy in this case, and that finding is not clearly
erroneous, see United States v. Zapata, 18 F.3d 971, 975 (1st Cir.
1994). Therefore the search and seizure of the gun were lawful.
He also argues that the trial court permitted the
government to pose leading questions and to impeach Ramirez
improperly. The court's rulings in this area are reviewed for
abuse of discretion. See United States v. Mulinelli-Navas, 111
F.3d 983, 990 (1st Cir. 1997). A review of the transcript reveals
that, at times, Ramirez was unresponsive or showed a lack of
understanding. The court was well within the bounds of its
discretion in permitting the government to clarify his testimony by
leading Ramirez and, when appropriate, impeaching him.
Hernndez suggests that for sentencing purposes the
government did not prove by a preponderance of the evidence that he
knew the type or quantity of drugs involved. Although Ramirez
initially denied mentioning the drug involved, he eventually
admitted that, on the day the deal was to take place, he told
Hernndez that the money would be used to purchase cocaine. While
there was equivocal evidence about whether Ramirez told Hernndez
about the quantity, the court ruled that Hernndez knew or
reasonably could have foreseen that the $123,500 loan would
purchase more than five kilograms. This finding cannot be
described as clearly erroneous. See United States v.
Miranda-Santiago, 96 F.3d 517, 524 (1st Cir. 1996).
Finally, claiming that his actions constituted aberrant
behavior, Hernndez moved for a downward departure. The court
refused to grant Hernndez's motion, stating that merely because
"[g]ood people do bad things" "doesn't mean that those [actions]
are aberrant behaviors." Unless the district court misapprehends
the guidelines or misconstrues its authority to depart, we do not
have jurisdiction to review discretionary decisions not to depart
from sentences imposed under the Guidelines. See United States v.
Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996). The district court
neither misapprehended the guidelines nor misconstrued its
authority; it simply found that such a departure was unwarranted.
We lack any authority to countermand its decision.
Affirmed.