United States Court of Appeals
For the First Circuit
No. 00-2191
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE GENAO, a/k/a EVARISTO MARTINEZ,
a/k/a LUIS TORRES
SANDRIA, a/k/a LUIS SANABRIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Selya, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Martin I. Flax on brief for appellant.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Stephanie S. Browne, Assistant United States Attorneys, on
brief, for appellee.
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
February 27, 2002
JOHN R. GIBSON, Senior Circuit Judge. Searching for drugs with a
warrant, Rhode Island police officers found only empty glassine paper
packets in Jose Genao’s second-floor apartment. Genao signed a consent-
to-search form that included the vacant apartment on the third floor.
When the police searched that apartment, they discovered 57 packets of
heroin and a gun. Genao now appeals from his ensuing convictions for
possessing heroin with intent to distribute it, in violation of 21
U.S.C. § 841(a)(1) (1994), and being a felon in possession of ammunition
and of a firearm, each in violation of 18 U.S.C. § 922(g)(1) (1994).1
Genao first disputes the district court’s2 denial of his motion to
suppress the confessions and the physical evidence seized from the
apartments. He claims that the affidavit the officers used to obtain
the search warrant failed to show probable cause; that the physical
evidence seized from the third-floor apartment was taken without his
1The jury that convicted Genao of these counts acquitted
him of a count of possessing a firearm during a drug trafficking
crime. The district court also dismissed a count against Genao
for conspiracy to distribute heroin and to possess heroin with
intent to distribute.
2The Hon. Mary M. Lisi, United States District Judge for
the District of Rhode Island, ruled on Genao's pretrial motions.
The Hon. Ronald R. Lagueux, United States District Judge for the
District of Rhode Island, presided over his trial.
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knowing and voluntary consent to the search; and that his confessions
were obtained in violation of the Fifth Amendment. Secondly, Genao
argues that the district court abused its discretion when it denied his
pro se motion to replace his appointed counsel without inquiring
sufficiently into Genao’s grounds for dissatisfaction. We affirm the
convictions.
The investigation that led to the search began when police
received a tip from a confidential informant that Migdalia Ortiz
(Genao’s wife) was selling heroin out of a second-floor apartment at 14
Benedict Street in Providence. The police learned that Migdalia Ortiz
had previously been arrested for drug offenses. The telephone number
at the apartment was assigned to "Jose Ortiz." The police arranged for
the informant to make a controlled purchase of heroin at the Ortiz
apartment. They obeyed several common formalities for such a procedure:
searching the informant to make sure that he had no contraband prior to
the purchase, watching him enter the building and leave it, then
inspecting the substance turned over by the informant after leaving the
apartment. In a field test, the substance tested positive for heroin.
The police prepared a search warrant affidavit reciting
essentially the above facts. They obtained a warrant to search the
second-floor apartment and the couple for heroin or drug paraphernalia.
A team of eight to ten officers, accompanied by a police dog,
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executed the search. In the second-floor apartment, the police found
a brown box with hundreds of empty glassine packages of a sort commonly
used to store drugs. The officers also noticed an open door leading to
a third-floor apartment. When asked whether the third-floor apartment
was occupied, Genao replied that it was vacant, but that he had a key
to it and was functioning as the landlord. This conversation was
conducted in English. Genao produced the key and demonstrated it to the
officers. At the officers’ request, Genao and Ortiz each signed a
consent form written in English and Spanish (apparently Genao’s first
language) that authorized the police to enter the third-floor apartment,
the second-floor apartment, and the basement.
In the upstairs apartment, the police seized 57 glassine
packets of heroin, a scale, coffee grinders, a sifter, a scoop,
packaging material, and two handguns with ammunition. The heroin was
in a black bag, concealed from view atop a cabinet in the third-floor
kitchen. The handguns and ammunition were hidden in a compartment built
into one of the kitchen walls. There was no furniture or food in the
upstairs apartment, nor any other signs that it was occupied.
After the items were seized, Detective Kevin O'Brien returned
to the second floor. O’Brien showed Genao the seized items and said,
"We've got a problem here." Before O’Brien could say anything else,
Genao stated in English: "Everything’s mine. I don't want my wife to
get in trouble." O'Brien interrupted Genao and told him not to say
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anything until he was advised of his rights. After this, O’Brien gave
Genao his Miranda rights in English. Genao stated that he understood
them. Genao then repeated his statement that everything was his and
that he did not want to get his wife in trouble.
I.
Genao argues that the affidavit underpinning the warrant was
too weak to authorize the police to enter and search the second-floor
apartment. We review de novo the district court’s holding that probable
cause existed for the search. United States v. Sawyer, 144 F.3d 191,
193 (1st Cir. 1998). At the same time, we review deferentially the
issuing court’s assessment of the facts and inferences underpinning the
warrant. Id.3
Probable cause exists where the facts recited in the
affidavit establish "'a fair probability that contraband or evidence of
a crime will be found in a particular place.'" United States v.
Baldyga, 233 F.3d 674, 683 (1st Cir. 2000), cert. denied, 122 S. Ct. 164
(2001) (quoting United States v. Khounsavanh, 113 F.3d 279, 283 (1st
Cir. 1997)). While we have declined to hold that a "controlled buy" of
the type carried out by the officers here will always establish probable
3A warrant-backed search may also be upheld on the ground that
the officers were relying "reasonably ... on a warrant issued by a
detached and neutral magistrate." United States v. Leon, 468 U.S. 897,
913 (1984). The issue of reasonable reliance is moot here in light of
our holding that the facts recited in the search warrant affidavit
established probable cause.
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cause to search the location where the informant was sent to buy drugs,
see Khounsavanh, 113 F.3d at 285, a properly conducted controlled buy
is formidable evidence to support a search.
Our prior decisions in Khounsavanh and United States v.
Garcia, 983 F.2d 1160 (1st Cir. 1993), are instructive. In each of
those cases, as in this one, police received a tip from an informant
that drugs were being sold in one of the apartments in a three-family
or three-story dwelling. They then arranged for the informant to make
a controlled buy at that location. After searching the informant for
drugs prior to the buy, and finding none, the police watched him enter
and leave the building (though not the particular apartment in
question). The returned informant stated that he had purchased drugs
from one of the parties mentioned in his earlier tip. Finally, the
police recovered from the informant illegal drugs of the same type
described in the tip. See Khounsavanh, 113 F.3d at 285-87; Garcia, 983
F.2d at 1166-67. In both cases, we held that the buy gave enough
corroboration of the assertion of illegal activity in the informant’s
tip to create probable cause, and we upheld both searches. See
Khounsavanh, 113 F.3d at 285-86; Garcia, 983 F.2d at 1167.
Here, for similar reasons, we conclude that the totality of
the circumstances reported in the affidavit was sufficient to establish
probable cause to search Genao’s second-floor apartment. The controlled
heroin buy here was not perfectly monitored, nor (to judge from the
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affidavit) did the informant buyer verify the name or specific location
of the seller after emerging from the building. The buy did, however,
yield a recovery of heroin consistent with the informant’s original tip,
recorded in the affidavit, that Migdalia Ortiz and her husband, "name
unknown," were selling heroin in the second-floor apartment. Moreover,
as the affidavit notes, phone company records showed a listing for Jose
Ortiz at 14 Benedict Street, second floor. In view of these facts, the
buy gave sufficient corroboration of the original tip to justify the
search.
II.
Genao next argues that even if the police were lawfully
present on the second floor, he did not consent voluntarily to the
search of the third floor, rendering the heroin and gun seized there
inadmissible.
This argument has been waived. Genao raised no voluntariness
challenge to the third-floor search in the district court. See Fed. R.
Crim. P. 12(f); United States v. Santos Batista, 239 F.3d 16, 19-20 (1st
Cir.), cert. denied, 122 S. Ct. 117 (2001) (pointing out that arguments
to suppress evidence as illegally seized, if not raised at or before the
suppression hearing, are treated as waived unless cause and prejudice
can be shown; holding defendant’s argument waived for this reason).
More than that, his counsel, when questioned on this issue by the
district court, expressly conceded that Genao was not making such a
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challenge. In light of this express concession to the court below, the
argument is waived.4
Apart from the waiver, whether the government has established
the voluntariness of consent to a search turns on the totality of the
circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
Genao executed a consent-to-search form that gave him, in both English
and Spanish, a thorough set of warnings about his rights and the effects
of a search. In addition, Genao’s volunteering the fact that he had a
key to the third-floor apartment and showing the police how the key
worked both indicate willing cooperation with the police. See United
States v. Zapata, 18 F.3d 971, 977 (1st Cir. 1994) (noting that
defendant’s act of freely handing over car keys to group of four
officers was "evidence of consent inferable from conduct").
III.
Genao also argues that both of his confessions should have
been suppressed as the products of constitutional violations. He claims
that his first confession was coerced, which implicates the due process
4See United States v. Clarke, 227 F.3d 874, 881 (7th Cir. 2000),
cert. denied, 531 U.S. 1182 (2001) (holding that when defendant
affirmatively waived the argument that bullets and scale seized from
his girlfriend’s house were taken in violation of Fourth Amendment, by
stating to the court that his motion to suppress did not encompass
those items, the argument was waived rather than forfeited and
therefore plain error review did not apply); United States v. Reveles,
190 F.3d 678, 683 (5th Cir. 1999) (holding that a constitutional right
"explicitly waived ... at trial" could not be a basis for reversal on
appeal).
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clauses of the Fifth and Fourteenth Amendments. See United States v.
Vega-Figueroa, 234 F.3d 744, 749 (1st Cir. 2000). He also claims that
it resulted from custodial interrogation not preceded by appropriate
warnings, which implicates the rule announced in Miranda v. Arizona, 384
U.S. 436 (1966). Either argument, if valid, would keep out the first
confession. Establishing that the first confession was coerced would
improve Genao’s chances of keeping out his second confession, which
followed Miranda warnings. See Oregon v. Elstad, 470 U.S. 298, 310-14
(1985).
Genao’s first confession was not produced by coercion.
"[O]nly confessions procured by coercive official tactics should be
excluded as involuntary." United States v. Byram, 145 F.3d 405, 407
(1st Cir. 1998) (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)).
The record establishes that the police did not apply undue or unusual
pressure to Genao, use coercive tactics, or threaten him with violence
or retaliation if he did not confess. See id. at 408. It is true that
Genao was in custody when he confessed to Detective O’Brien, and a
sizable team of police officers (plus the dog) was present in the
apartment with him at the same time. But these facts without more do
not add up to "police overreaching," as required for a holding of
coercion. Connelly, 479 U.S. at 170. We conclude that Genao’s first
statement was not coerced.
Despite the lack of actual coercion, it is a constitutional
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rule that a confession resulting from custodial interrogation not
preceded by appropriate warnings is normally inadmissible against the
speaker. Dickerson v. United States, 530 U.S. 428, 431-32, 444 (2000).
Genao argues that he was in custody when the police searched the second-
and third-floor apartments, and that Detective O’Brien’s first words to
him -- "We’ve got a problem here" -- amounted to interrogation. If
true, this would require exclusion of the first confession.
The first confession, however, was not the product of a
Miranda violation, for Detective O’Brien’s brief remark to Genao did not
constitute interrogation. For Miranda purposes, interrogation is
"express questioning or its functional equivalent." Rhode Island v.
Innis, 446 U.S. 291, 300-01 (1980). Interrogation occurs only when
police conduct is "reasonably likely to elicit an incriminating response
from the suspect." Id. at 301. Moreover, "words or actions . . .
normally attendant to arrest and custody" do not constitute
interrogation. Id. (punctuation omitted).
In light of the circumstances here, O’Brien’s remark to Genao
was not the functional equivalent of questioning, nor was it reasonably
likely to elicit an incriminating response. The district court found
that Genao confessed before O’Brien could begin reading Genao his
Miranda rights. This finding was not clearly erroneous in light of the
record before us. In that context, O’Brien’s words are reasonably
viewed as a preliminary comment intended to get Genao’s attention before
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reading him his rights and explaining that he was under arrest. Cf.
United States v. Vazquez, 857 F.2d 857, 863 (1st Cir. 1988) ("Although
a purpose to elicit information is not dispositive, our consideration
of the actual impact of the technique cannot help but be influenced by
whether the police believed that it would produce a response from the
suspect."). In addition, the remark was brief, was not worded in a
particularly confrontational manner, and did not directly accuse Genao
of any crime or seek to inflame his conscience. Cf. United States v.
Allen, 247 F.3d 741, 764-65 (8th Cir. 2001) (holding that no
interrogation occurred where police told suspect, who had requested but
not yet received counsel, of the unfavorable results of the lineup in
which he agreed to take part without counsel being present; police
remark was "a simple description of the status of the . . .
investigation," not interrogation); United States v. Moreno-Flores, 33
F.3d 1164, 1168-70 (9th Cir. 1994) (concluding no interrogation where
police officer told defendant, who had invoked his right to silence,
that agents had seized 600 pounds of cocaine and defendant was in
"serious trouble").5
5
A similar analysis applies to the officers’ asking Genao
whether the third floor was occupied, which prompted Genao to
state that it was vacant, and that he was acting as the
landlord. We note that Genao raised no Miranda challenge to the
admission of these statements at trial, although he did not
expressly waive such a challenge. Assuming plain error review
applies, admitting the statements was not plain error. The
officers’ question was "much more of an informational inquiry
incident to the arrest, as opposed to a query designed to induce
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Genao’s main argument for excluding his second confession,
which came after Miranda warnings, is that it was tainted by the
constitutional defects that he claims marked the first one. However,
this argument was waived below. Genao’s counsel specifically told the
district court that Genao did not challenge the second confession’s
admissibility. See note 4 supra (discussing express waiver). Even if
this waiver did not preclude review, our earlier conclusion that Genao’s
first confession was voluntary would all but foreclose his argument for
excluding the second one. "A subsequent administration of
Miranda warnings to a suspect who has given a voluntary but unwarned
statement ordinarily ... suffice[s] to remove the conditions that
precluded admission of the earlier statement." United States v.
Esquilin, 208 F.3d 315, 319 (1st Cir. 2000) (quoting Elstad, 470 U.S.
at 314). Our further conclusion that Genao’s first confession was not
even the result of a Miranda violation puts the matter beyond doubt.
Both confessions were properly admitted.
IV.
Genao’s final argument is that the district court committed
reversible error by denying his motion for new counsel without making
an inculpatory remark." United States v. Conley, 156 F.3d 78,
84 (1st Cir. 1998) (holding that no interrogation occurred when
a postal inspector asked an un-Mirandized defendant whether cash
found in a search of the defendant’s person was the defendant’s
own).
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a sufficient inquiry into the nature and grounds of Genao’s
dissatisfaction. Genao disclosed his dissatisfaction in a pro se
motion for dismissal of his appointed counsel, accompanied by his
affidavit. Genao’s motion stated that he sought to dismiss his
appointed federal counsel, a Mr. Lepizzera, on the ground of
"ineffective . . . assistance." In the affidavit, Genao complained
chiefly that Lepizzera had wrongly encouraged him to accept a guilty
plea in a related state court proceeding in which Genao was
represented by a different appointed attorney. He also complained
that "since I’ve been indicted, I haven’t even seen my indictment or
any legal papers." The motion was dated March 9, 2000. At that
time, Genao’s jury was scheduled to be empaneled on March 21, 2000.
The district court began its hearing on the motion by
asking Genao to explain his problems with counsel "in [his] own
words," then changed its mind and instead asked Genao to affirm that
the reasons for his dissatisfaction were those given in his motion.
Genao said yes. Next, Genao answered questions that the district
court posed about his dissatisfaction with his attorney’s advice to
plead guilty in the state proceeding. The court also questioned
Lepizzera about Genao’s concerns with the state court guilty plea.
Genao then spoke spontaneously about his belief that
counsel had failed to contact an exculpatory witness who, Genao
claimed, planted the heroin that the police discovered on the third
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floor, and another witness who allegedly purchased some of the heroin
from Genao’s wife. The district court cut Genao off, saying: "You
are going into areas that are not included in your motion." The
court did not ask appointed counsel any questions about his handling
of Genao’s concerns about exculpatory witnesses. It denied the
motion to substitute counsel without permitting Genao to speak again.
At trial, Lepizzera did not call witnesses, but he did
argue that Genao’s conduct showed that he did not know there were any
drugs on the third floor. His cross-examination of Detective
O’Brien, the government’s lead witness, laid a foundation for this
argument.
We review the district court’s denial of a motion to
substitute counsel for abuse of discretion. United States v.
Richardson, 894 F.2d 492, 496 (1st Cir. 1990). The relevant inquiry
is described in United States v. Allen, 789 F.2d 90 (1st Cir. 1986):
Where the accused voices objections to appointed counsel, the
trial court should inquire into the reasons for the
dissatisfaction . . .. In evaluating whether a trial court’s
denial of [the] motion . . . constituted an abuse of discretion
. . . the appellate court should consider several factors,
including the timeliness of the motion, the adequacy of the
court’s inquiry into the defendant’s complaint, and whether the
conflict between the defendant and his counsel was so great that
it resulted in a total lack of communication preventing an
adequate defense.
Id. at 92, quoted in United States v. Prochilo, 187 F.3d 221, 225
(1st Cir. 1999).
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Genao’s argument is based on the second Allen factor: that
because the district court prevented him from fully explaining one of
his grounds for dissatisfaction, its inquiry was so inadequate as to
amount to an abuse of discretion. In Prochilo, we held that the
district court’s complete failure to conduct any inquiry on the
defendant’s motion to substitute paid counsel for his appointed
counsel was an abuse of discretion that required reversal of the
conviction. Id. at 223, 229. Here, by contrast, the district court
did hold a hearing, and discussed the motion with Genao and
Lepizzera. The record makes clear that the court’s inquiry into
Genao’s concern about his state court guilty plea was adequate.
The district court’s handling of Genao’s complaints about
Lepizzera’s trial preparation presents a closer question. The court
apparently rejected Genao’s claim that Lepizzera failed to
investigate material witnesses on the ground that the claim was "not
included in [Genao’s] motion." Genao’s motion alleged that he was
receiving ineffective assistance of counsel, and his affidavit
indicated that Lepizzera was not keeping in contact with him about
his case. This claim might be read as raising an issue of attorney
diligence. This court has emphasized, when dealing with motions for
a continuance in order to substitute counsel, that "specificity in a
motion of this sort cannot be required." Prochilo, 187 F.3d at 226.
Cf. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (courts
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should read pro se complaints less strictly than lawyer-drafted
pleadings); Prou v. United States, 199 F.3d 37, 42 (1st Cir. 1999)
(applying more tolerant standard of particularity to pro se motion
for relief under 28 U.S.C. § 2255).
We must also consider "whether the conflict between the
defendant and his counsel was so great that it resulted in a total
lack of communication preventing an adequate defense." Allen, 789
F.2d at 92. Here, the conflicts alleged by Genao, in light of the
record as a whole, do not establish a breakdown so severe that the
district court’s refusal to intervene was an abuse of discretion.
The court rightly concluded that Genao’s concerns about the state
court guilty plea were not meritorious. Lepizzera was not even
Genao’s counsel for the state court proceeding. Moreover, the mere
fact that a defense attorney and his client disagree about the
advisability of a plea does not justify appointing new counsel. See
id. at 93. The district court found that Genao was informed of the
consequences of the state court plea when he ultimately decided to
accept it, and this finding was not clearly erroneous.
Similar reasoning applies to Lepizzera’s failure to present
Genao’s defense theory in exactly the way Genao wished, which would
have involved an alleged exculpatory witness or witnesses. Counsel
has considerable discretion over the choice of trial tactics, and a
disagreement between client and counsel on how best to structure a
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defense does not normally establish the sort of conflict that on its
own deprives the defendant of an adequate defense. See Strickland v.
Washington, 466 U.S. 668, 688-691 (1984); United States v. Anderson,
189 F.3d 1201, 1211 (10th Cir. 1999); United States v. Leggett, 81
F.3d 220, 227 (D.C. Cir. 1996). We are also influenced by
the fact that the district court is ill-positioned to evaluate, in a
pretrial hearing, ineffective assistance claims based on an
attorney’s failure to pursue a particular type of defense. It is
hard to gauge the appropriateness of counsel’s actions or omissions
without knowing how the trial will actually play out. Indeed, even
after a trial is completed, we do not entertain ineffective
assistance claims on direct appeal absent an evidentiary record that
allows us to evaluate the fact-specific allegations. See, e.g.,
United States v. Woods, 210 F.3d 70, 74 (1st Cir. 2000). The
preferable vehicle for such claims is a collateral proceeding under
28 U.S.C. § 2255, in which the parties and the district court can
address factual matters relevant to the issue. See United States v.
Jadusingh, 12 F.3d 1162, 1169-1170 (1st Cir. 1994). Genao, of
course, remains free to pursue a Section 2255 petition directly
addressing the issue.
In light of the record before us, however, we are persuaded
that the district court’s denial of Genao’s motion did not rise to
the level of an abuse of discretion meriting reversal. Since his
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challenges to the search and to the admissibility of his confessions
are also rejected, we affirm his convictions.
AFFIRMED.
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