United States Court of Appeals
For the First Circuit
No. 07-2796
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL VASQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Kevin J. Reddington for appellant.
Sara Miron Bloom, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
October 8, 2008
BOUDIN, Circuit Judge. Rafael Vasquez appeals from his
conviction for drug and gun offenses. Based on evidence at the
suppression hearing and trial, a brief sketch of the background
events is as follows.
On December 13, 2005, acting on a tip regarding a likely
drug delivery, police officers stopped a car near the parking lot
of a restaurant in Fall River, Massachusetts, and ordered the
occupants to exit. As Vasquez exited from the passenger side, he
told the officers that he had a gun, which they took from him. The
female driver, exiting from the other side, dropped a plastic bag
seemingly containing drugs; and Vasquez shouted that the crack
belonged to him and that the driver had nothing to do with it.
Vasquez was charged with possession of cocaine base with
intent to distribute, 21 U.S.C. § 841(a)(1) (2000), possession of
a firearm in relation to a crime of drug trafficking, 18 U.S.C. §
924(c)(1)(A) (2000), and being a felon in possession of a firearm
and ammunition, 18 U.S.C. § 922(g)(1) (2000). A jury convicted
Vasquez on all three counts, and he was sentenced to concurrent
five year terms for the first and third offenses, and a consecutive
five years for the second offense, as required by 18 U.S.C. §
924(c)(1)(A). This appeal followed.
Vasquez's principal argument on appeal is that the
district court should have suppressed his statements acknowledging
that the drugs were his, his admission that he possessed the gun
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and the gun itself. He says that no reasonable suspicion justified
a stop of the car, nor did probable cause exist to warrant what he
characterizes as a de facto arrest. Following a suppression
hearing prior to trial, the judge had refused to suppress the
evidence, finding that a reliable informant's tip and the officers’
observation of suspicious activity during surveillance provided
adequate justification for the officers’ actions.
The district judge credited the testimony of Detective
Jacob, who testified at the suppression hearing as to the origin of
the tip; that finding is reviewed only for clear error,1 and
Vasquez does not contest it. Jacob said that the tip was received
by an informant; that the informant had provided reliable
information to him personally as to drug deals in August, September
and October 2005; and in each instance a search warrant issued and
the suspects were convicted.
The district court also ruled that although the informant
had himself been arraigned in early September 2005 for forgery and
writing false checks, he remained "clearly reliable" as an
informant, two of the three earlier tips having been furnished
1
United States v. Jones, 523 F.3d 31, 36 (1st Cir. 2008)
("When considering challenges to a district court's denial of a
motion to suppress, we ordinarily review findings of fact for clear
error and conclusions of law de novo."); United States v.
Cunningham, 201 F.3d 20, 28 (1st Cir. 2000) ("[I]n absence of clear
error, credibility assessments 'are exclusively within the province
of the sentencing court.'") (quoting United States v. Olivier-Diaz,
13 F.3d 1, 4 (1st Cir. 1993))).
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after the arraignment. A sufficiently specific tip from an
informant of proven reliability can establish probable cause for an
arrest, not merely a Terry stop. United States v. Link, 238 F.3d
106, 109-10 (1st Cir. 2001). Given his accurate tips, the
informant's own criminal background did not prevent the police from
reasonably relying upon his information. See United States v.
Brown, 500 F.3d 48, 54-56 (1st Cir. 2007).
Further, the informant had said that a Hispanic man named
"Raffe"--about 30 years old with black hair--would be driven by a
female driver in a white Toyota Corolla to the parking lot in order
to deliver a package of crack cocaine. Just before the arrest, the
defendant had entered the parking lot in a white Toyota Corolla,
driven by a woman. This, of course, tended to "corroborate that
certain events had taken place exactly as the [confidential
informant] had predicted." Brown, 500 F.3d at 56.
Finally, the police testified that the car's driving
pattern was unusual: the car drove slowly around the parking lot as
Vasquez and the driver peered into the parked cars, the car exited
the lot without stopping, drove onto a highway, and then
immediately turned off it and returned to the street next to the
parking lot. It was at this point that the police, now having more
than ample probable cause, halted the car, ordered the passengers
out and secured the gun and drugs.
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Vasquez makes several other preserved arguments, but none
requires much comment. The district court refused to dismiss a
juror who said that he supported gun control laws but could be
impartial. Such rulings are reviewed for abuse of discretion, see
United States v. Martí-Lón, 524 F.3d 295, 300 (1st Cir. 2008), and
there is no indication of any such abuse in this instance.
Further, the juror turned out to be an alternate and was dismissed
before deliberations began.
Vasquez also says that the evidence was insufficient to
show that the gun he surrendered at his arrest was carried during
and in relation to a drug trafficking crime. Although the argument
was preserved by motion for acquittal, Vasquez clearly brought the
gun to the scene with the drugs, and the jury was entitled to
conclude that the gun had sufficient "potential of facilitating"
the drug trafficking offense for which Vasquez was convicted.
Smith v. United States, 508 U.S. 223, 238 (1993) (quoting United
States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). No more is
required.
The remaining claims of error--for example, challenging
supposed errors in the jury instructions--were not preserved. We
have examined each under the demanding plain error standard
applicable in such cases, United States v. Olano, 507 U.S. 725
(1993), but find that none even comes close. Defense counsel on
appeal is entitled to search the record for such unpreserved claims
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and call such claims to our attention, but they do not in this
instance warrant separate discussion.
Affirmed.
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