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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