United States v. Barrow

United States Court of Appeals
For the First Circuit

No. 04-2722

UNITED STATES OF AMERICA,

Appellee,

v.

TONY BARROW,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Torruella, Circuit Judge,
Hansen,* Senior Circuit Judge,
and Lynch, Circuit Judge.

J. Michael McGuinness, with whom The McGuinness Law Firm was
on brief, for appellant.
Germán A. Rieckehoff, Assistant United States Attorney, with
whom Nelson Pérez-Sosa, Assistant United States Attorney, and H.S.
García, United States Attorney, were on brief, for appellee.

May 17, 2006

*
Of the Eighth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. Defendant Tony Barrow

("Barrow") was convicted of importing 500 or more grams of cocaine

into the United States, in violation of 21 U.S.C. §§ 952 and 960,

and of possessing with intent to distribute 500 or more grams of

cocaine, in violation of 21 U.S.C. § 841. He appeals his

conviction and sentence. After careful consideration, we affirm.

I.

On November 16, 2003, Barrow flew from the island of St.

Maarten (or St. Martin) to San Juan, Puerto Rico. As he was going

through immigration, agents questioned him pursuant to their

routine procedures. When asked about the purpose of his visit, he

stated that he went to St. Maarten for business and that he was

setting up a barber shop. According to the agents, Barrow avoided

eye contact and appeared nervous. Barrow was carrying a box used

by duty-free stores, which is not unusual for a person traveling

internationally, but the box was old and broken instead of new.

The agents referred Barrow to secondary inspection.

The agents ran a computer query on Barrow's plane ticket

and discovered that the ticket had been purchased the day before by

someone else and was paid for in cash. The agents also discovered

that Barrow had a criminal history. Agents asked him further

questions, to which they found Barrow's answers suspicious. Barrow

stated that he had a cousin in St. Maarten, but that he did not

stay with him or have his address or phone number. Agents found a

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phone number in Barrow's bag, and Barrow stated that it was the

cell phone number of his cousin but that it did not work.

One of the agents opened the box Barrow was carrying and

discovered that it contained four liquor bottles. Barrow and the

government dispute whether Barrow was present during the inspection

of the bottles. The agent found the bottles unusual because liquor

bottles normally have some air at the top and these were filled all

the way to the top, the caps of the bottles did not look new, and

there were no bubbles when the bottles were shaken. The agent

tested the bottles and discovered that they contained cocaine. The

agents then arrested Barrow.

Further analysis revealed that the bottles contained 2.6

kilograms of cocaine. Accordingly, Barrow was charged with

importing 500 grams or more of cocaine into the United States

("Count 1") and with possession with intent to distribute 500 grams

or more of cocaine ("Count 2"). Barrow moved to suppress the

contents of the liquor bottles, arguing that the search was

unreasonable. In support of his motion to dismiss, Barrow

requested an evidentiary hearing, which he argued was necessary to

determine the veracity of the agents' statements and to determine

whether the agents had stopped him because of his race. The

district court did not allow an evidentiary hearing and denied the

motion to suppress.

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 After a three day trial, a jury convicted Barrow of both

counts. Because Barrow had prior convictions for drug trafficking

crimes, the district court found that he was a career offender and

sentenced him to a term of imprisonment of 262 months, which was

the minimum sentence under the Guidelines.

II.

A. Motion to Suppress

Barrow argues that the search of the liquor bottles

outside of his presence1 was an unreasonable search that violated

his Fourth Amendment rights. Because of the unique considerations

concerning the entry of persons into the United States, routine

searches at an international border are reasonable under the Fourth

Amendment and do not require a warrant, probable cause, or even a

reasonable suspicion. United States v. Montoya De Hernández, 473

U.S. 531, 538 (1985). Non-routine border searches include strip

searches and body-cavity searches and can only be made if supported

by a reasonable suspicion. United States v. Braks, 842 F.2d 509,

512-14 (1st Cir. 1988). Barrow does not contend that the testing

of the contents of the liquor bottles was non-routine. He merely

argues that the search was unreasonable but cites no case law in

support of this proposition. The testing of the contents of the

liquor bottles was clearly a routine border search, and we refuse

1
The parties dispute whether Barrow was present during the
testing, but we need not address this issue as it does not change
the outcome.

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to find it unreasonable merely because Barrow may not have been

present.

Barrow also argues that the district court erred in not

granting him an evidentiary hearing to resolve factual disputes

relevant to his motion to suppress. He cites three factual

disputes: (1) whether he was present during the testing of the

contents of the liquor bottles; (2) whether statements by

government agents explaining their reasons for stopping Barrow were

true; and (3) whether government agents stopped Barrow because of

his race. We review the district court's decision not to hold an

evidentiary hearing for abuse of discretion. United States v.

Calderón, 77 F.3d 6, 9 (1st Cir. 1996). The first two factual

disputes do not merit attention because they are not relevant to

determining whether evidence should be suppressed. As we just

discussed, the search of the liquor bottles was reasonable

regardless of Barrow's presence. Further, the agents did not need

a reason to stop Barrow, so the truth of their statements is

immaterial. Finally, the district court did not abuse its

discretion in denying an evidentiary hearing to investigate bare

speculation that agents may have considered Barrow's race in their

decision to stop him. See Shackelford v. DeLoitte & Touche, LLP,

190 F.3d 398, 405 (5th Cir. 1999) (finding bare allegations of

discrimination insufficient to avoid summary judgment).

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 B. Information Stating Prior Convictions

In order to use prior convictions as a basis for

enhancing Barrow's sentence, the prosecution was required to

"file[] an information with the court (and serve[] a copy of such

information on the person or counsel for the person) stating in

writing the previous convictions to be relied upon" before the

commencement of the trial. 21 U.S.C. § 851(a)(1). The prosecution

filed an information with two of Barrow's convictions the day

before the trial and served it the following morning before the

trial began. Barrow claims that the last-minute filing and service

of the information violated the Due Process Clause. Barrow

provides no legal support for this claim and has not indicated how

he was prejudiced. We have previously upheld the filing and

service of an information the day before trial, and we similarly

find no error here. United States v. Cartagena-Carrasquillo, 70

F.3d 706, 715 (1st Cir. 1995).

C. Admissibility of Evidence

Barrow contends that the district court made several

errors in admitting evidence at trial. We review a district

court's decision to admit evidence for abuse of discretion. United

States v. Cruz, 352 F.3d 499, 504 (1st Cir. 2003).

(1) Chain of Custody of the Liquor Bottles

Barrow argues that the liquor bottles should not have

been allowed into evidence because the chain of custody was

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compromised. Under Federal Rule of Evidence 901(a), authentication

is a condition precedent to admissibility. The district court must

determine "if there is a reasonable probability that the evidence

is what it is purported to be." Cruz, 352 F.3d at 506 (internal

quotation marks omitted). Once this is established, "[a] possible

defect in the chain of custody for a certain piece of evidence

factors into the weight given to the evidence rather than its

admissibility." United States v. Scharon, 187 F.3d 17, 22 (1st

Cir. 1999).

The government presented two witnesses to establish the

chain of custody: Customs Agent Roderic Gurunmendi and DEA Chemist

Enrique Piñero. Gurunmendi participated in the arrest of Barrow.

He testified that, on the day of Barrow's arrest, he put the liquor

bottles in an evidence bag, sealed the bag, and wrote his initials

and badge number on the bag. His supervisor witnessed this, also

signed the bag, and stored the bag in a vault. Gurunmendi also

testified that the bottles in evidence at trial were the same ones

that were seized from Barrow.

Piñero tested the contents of the liquor bottles. He

testified that when he received the bottles they were in heat-

sealed bags inside Customs boxes. After performing the tests, he

put the bottles in a DEA heat-sealed bag, initialed the bag, and

then placed and sealed it in a DEA box. At trial, he testified

that the bottles in evidence were the same ones that he had tested.

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 The only coherent argument that Barrow makes is that one

of the liquor bottles broke between Barrow's arrest and the trial

and that this suggests that the evidence was tampered with.

Piñero's testimony showed that the bottles were broken after he had

tested their contents, so his analysis was not affected. Further,

Barrow does not explain why a broken bottle undermines the chain of

custody or indicates tampering. Accordingly, we find that the

district court did not abuse its discretion in admitting the liquor

bottles.

(2) Testimony by Agent Rivera and Agent Gurunmendi

Agent Jorge Rivera of U.S. Immigration and Customs

Enforcement testified at trial, based on his training and

experience, how drugs are usually transported or shipped across the

border. Agent Gurunmendi testified that St. Maarten is a high-risk

country and that agents seize a lot of drugs from people arriving

from St. Maarten. Barrow objected to both agents' testimony and

now argues that their testimony was improper both as lay and expert

testimony and also that it should have been excluded under Federal

Rule of Evidence 403.

Barrow's argument, which is difficult to understand, does

not turn on whether the two agents were lay or expert witnesses,

but is only that the testimony lacked foundation and as such was

inadmissible and in any event was unduly prejudicial under Rule

403. While the testimony was harmful in the sense that it was

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relevant and probative, this does not make the testimony unduly

prejudicial. See Cruz, 352 F.3d at 506 ("[T]he district court

could have concluded that the prejudice caused by such testimony

was not unfair; it was, instead, merely the negative result of the

testimony's probative value."); United States v. Pitrone, 115 F.3d

1, 8 (1st Cir. 1997) ("Virtually all evidence is prejudicial -- if

the truth be told, that is almost always why the proponent seeks to

introduce it -- but it is only unfair prejudice against which the

law protects."). The subject of the agents' testimony was not an

unusual one in criminal cases. See, e.g., Cruz, 352 F.3d at 504-05

(officer testified that defendant was seen at a known drug point);

United States v. García-Morales, 382 F.3d 12, 18-19 (1st Cir. 2004)

(officer explained "the structure and operation of a typical drug

distribution conspiracy"). Further, the agents' testimony was not

specific to Barrow in that it described general techniques used in

international drug trafficking and the general prevalence of drug

trafficking out of St. Maarten. This testimony is rather

insignificant when compared with the other evidence against Barrow.

Assuming arguendo that the court abused its discretion in allowing

the agents' testimony, any error was harmless.

D. Sentencing Errors

Barrow claims that he is entitled to resentencing under

United States v. Booker, 543 U.S. 220 (2005). Because he did not

argue below that the Guidelines were unconstitutional or that the

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sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), or

Blakely v. Washington, 542 U.S. 296 (2004), we review for plain

error. See United States v. Antonakopoulos, 399 F.3d 68, 76 (1st

Cir. 2005).2 In order to meet this standard, Barrow "must point to

circumstances creating a reasonable probability that the district

court would impose a different sentence more favorable to the

defendant under the new 'advisory Guidelines' Booker regime." Id.

at 75. Barrow, however, has failed to point to anything in the

record to indicate that such a reasonable probability exists.3

Because of his prior convictions, the sentencing judge

found that Barrow was a career offender and enhanced his sentence.

Barrow contends that a jury was required to find the existence of

the prior convictions beyond a reasonable doubt despite Supreme

Court authority to the contrary. See Almendarez-Torres v. United

States, 523 U.S. 224, 226-27 (1998). Barrow argues that

Almendarez-Torres has been undermined by the Court's more recent

decision in Booker. We have recently considered and rejected this

very argument. See United States v. Jiménez-Beltre, 440 F.3d 514,

520 (1st Cir. 2006) (en banc).

2
Barrow argues that there should be a presumption of prejudice,
but this argument is foreclosed by our decision in Antonakopoulos.
399 F.3d at 79-80 & n.11.
3
Barrow did not even mention that he received a sentence at the
bottom of the applicable Guideline range. Although this is
certainly a factor, it is itself not sufficient. See United States
v. Guzmán, 419 F.3d 27, 33 (1st Cir. 2005).

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 E. Cumulative Error

Barrow's last ditch effort is to argue that the alleged

errors taken cumulatively deprived him of due process. We have

noted that "[i]ndividual errors, insufficient in themselves to

necessitate a new trial, may in the aggregate have a more

debilitating effect." United States v. Sepúlveda, 15 F.3d 1161,

1195-96 (1st Cir. 1994). Given that we have not found any

significant prejudice from any of Barrow's alleged errors, we do

not find any cumulative effect that would justify a new trial.

F. Waived Arguments

In his brief, Barrow alleges other errors by the district

court without any discussion of the relevant law or facts. We need

not consider these alleged errors because "issues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990). Regardless, these alleged errors are

patently meritless, and we briefly address each in turn.

Barrow states that no reasonable jury could have found

that he knowingly possessed the cocaine in the liquor bottles. A

jury may reasonably infer knowledge from circumstantial evidence,

and we have affirmed the jury's verdict in similar situations. See

United States v. Hernández, 218 F.3d 58, 66-67 (1st Cir. 2000).

Barrow also contends that the district court erred in not granting

a mistrial after a prosecution witness stated that he "found some

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criminal history in the computer" after the district court had

instructed the prosecution not to introduce testimony about

Barrow's prior convictions. We do not think the district court

abused its discretion in not granting a mistrial based on this

statement, and since Barrow testified and was impeached with a

prior conviction, he cannot claim prejudice. See United States v.

Freeman, 208 F.3d 332, 339 (1st Cir. 2000). Further, Barrow

summarily asserts that the district court violated Federal Rules of

Evidence 403 and 609 in allowing the government to impeach his

credibility with a prior conviction. The district court was well

within its discretion since it allowed impeachment with only one of

Barrow's two prior convictions; the prior conviction was for drug

trafficking, which we regard as bearing on credibility; Barrow's

credibility was central to the case; and the court instructed the

jury that the prior conviction could not be used as evidence of

guilt but only to determine Barrow's credibility. See United

States v. Brito, 427 F.3d 53, 63-64 (1st Cir. 2005).

III.

For the foregoing reasons, we affirm Barrow's conviction

and sentence.

Affirmed.

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