United States v. Gray-Santana

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT


____________________

No. 96-1043
No. 96-1669

UNITED STATES OF AMERICA,
Appellee,

v.

DONALD E. CLEVELAND,
Defendant, Appellant.

____________________

No. 96-1128

UNITED STATES OF AMERICA,
Appellee,

v.

RAMON E. VASQUEZ,
Defendant, Appellant.

____________________

No. 96-1659

UNITED STATES OF AMERICA,
Appellee,

v.

ENRIQUE GRAY-SANTANA,
Defendant, Appellant.

____________________

ERRATA

The published opinion of this Court issued on February 18, 1997,
is amended as follows:

Page 4: insert as line 1, the following: "to eight kilograms of
cocaine from co-defendant Juan Rodriguez"

Page 5, 4th line from bottom: delete comma after "Acosta"















UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 96-1043
No. 96-1669

UNITED STATES OF AMERICA,

Appellee,

v.

DONALD E. CLEVELAND,

Defendant, Appellant.

____________________

No. 96-1128

UNITED STATES OF AMERICA,

Appellee,

v.

RAMON E. VASQUEZ,

Defendant, Appellant.

____________________

No. 96-1659

UNITED STATES OF AMERICA,

Appellee,

v.

ENRIQUE GRAY-SANTANA,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge] ___________________
















____________________

Before

Boudin, Circuit Judge, _____________

Campbell, Senior Circuit Judge, ____________________

and Bownes, Senior Circuit Judge. ____________________
____________________

Inga S. Bernstein and John H. Cunha, by Appointment of the Court, _________________ _____________
with whom Norman S. Zalkind, Zalkind, Rodriguez, Lunt & Duncan and __________________ __________________________________
Salsberg, Cunha & Holcomb, P.C. were on consolidated briefs for __________________________________
appellants Enrique Gray-Santana and Donald E. Cleveland.
Oliver C. Mitchell, Jr. with whom Donnalyn B. Lynch Kahn and _________________________ ________________________
Goldstein & Manello, P.C. were on brief for appellant Ramon E. ____________________________
Vasquez.
Andrea Nervi Ward, Assistant United States Attorney, with whom __________________
Donald K. Stern, United States Attorney, was on briefs for the United ________________
States.


____________________

February 18, 1997
____________________





































CAMPBELL, Senior Circuit Judge. Ramon E. Vasquez _____________________

appeals from his conviction by a jury for conspiracy to

possess cocaine with intent to distribute in violation of 21

U.S.C. 846 and for possession of cocaine with intent to

distribute in violation of 21 U.S.C. 841. He contends that

the district court erred in denying his motion to suppress

certain physical evidence and in omitting "hesitate to act"

language from its reasonable doubt instruction.

Enrique Gray-Santana and Donald Cleveland, who were

Vasquez's co-defendants, pleaded guilty to attempting to

possess cocaine with intent to distribute in violation of 21

U.S.C. 846 and 841(a) and to carrying or using a firearm

during and in relation to a drug trafficking crime in

violation of 18 U.S.C. 924(c)(1). As their guilty pleas

permit, they now appeal from the district court's denials of

their motions to suppress and motions in limine. They also

appeal from the district court's denial of relief from their

924(c)(1) convictions for carrying or using a firearm in

relation to a drug crime. They argue that their guilty pleas

and convictions should be invalidated under Bailey v. United ______ ______

States, ___ U.S. ___, 116 S. Ct. 501 (1995), a decision ______

handed down by the Supreme Court shortly after acceptance of

their guilty pleas.

I. Background





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Most of the facts are not in dispute. Gray-Santana

("Gray"), a resident of New York City, arranged to secure

five to eight kilograms of cocaine from co-defendant Juan

Rodriguez (not a present appellant). Gray intended to sell

the cocaine through other contacts he had in Boston, so he

arranged to take delivery in Boston.

On the morning of October 18, 1994, Gray travelled

by bus to Boston, planning to meet Cleveland. Cleveland

picked Gray up in a rented white Mazda 929 he had borrowed

from a friend and took him to his house. There, Cleveland

and Gray placed three loaded handguns inside a Louis Vuitton

duffel bag and put the bag inside the Mazda's trunk. The two

planned to use the guns to rob their suppliers of their

cocaine. At around 4 p.m., Cleveland and Gray were paged by

Rodriguez. They then left in the Mazda to meet Rodriguez in

the Symphony Hall area of Boston.

At this time, the Drug Enforcement Administration

was investigating one Juan Pagan. The DEA had information

that Pagan was shipping large amounts of cocaine from Puerto

Rico to New England. On October 17, 1994, heightened phone

activity led DEA Agents to begin physical surveillance,

including videotaping, of the Connecticut apartment complex

where Juan Pagan resided. Around noon on October 18, 1994,

two cars arrived at the complex. The first was a Lexus,





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driven by William Acosta with Vasquez in the back seat. The

second was a Lincoln, driven by Rodriguez.

After the cars parked, Rodriguez handed Acosta a

black bag and then Acosta took the bag up to Pagan's

apartment. Vasquez, carrying a cellular phone, got out of

the Lexus and sat with Rodriguez in the Lincoln. After ten

or fifteen minutes, Acosta came back and spoke to Vasquez,

prompting Vasquez and Rodriguez to leave the complex in a

brown Oldsmobile driven by one Jorge Quinones. An hour or so

later, Vasquez returned in the Oldsmobile, followed by

Rodriguez in a white Isuzu Trooper.

The DEA had received information from two

confidential sources that Pagan used a white Isuzu Trooper in

his drug operations. These informants had also told the DEA

that some of Pagan's vehicles had hidden compartments used to

hold drugs. One of the informants had stated that Pagan's

white Isuzu Trooper had such a hidden compartment under the

rear seat.

After the Isuzu arrived, Acosta and Rodriguez were

observed examining its back seat area. Acosta then left,

driving the Lexus with Vasquez in the back seat. Rodriguez

followed them in the Isuzu. The two cars drove to Boston on

major highways, staying close to 55 miles per hour. DEA

agents followed them the entire way.





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After the caravan arrived in the Symphony Hall area

of Boston, Acosta and Rodriguez parked the cars. Acosta then

used the Lexus to guide Cleveland and Gray, who had arrived

in the Mazda, to where the Isuzu was parked. Acosta drove

away, and Vasquez was next observed sitting in the back seat

of the Mazda. Gray exited the Mazda and got into the Isuzu.

Vasquez got into the front seat of the Mazda.

The two cars began to drive off. At this point,

the DEA agents blocked them. The agents ordered the

occupants of both cars to exit their vehicles and handcuffed

them. The agents then moved the suspects and their cars out

of traffic to a nearby parking lot.

The agents searched the Isuzu and found six

kilograms of cocaine in a concealed compartment underneath

the back seat. They then searched the Mazda and found the

bag in the trunk containing the three guns, rope and duct

tape. At that point, the four men were told they were under

arrest.

A few hours after his arrest, while he was in

custody, Gray gave a statement to DEA agent Bruce Travers

confessing to participation in the events described above.

Vasquez filed a motion to suppress the physical

evidence found on his person at the time of his arrest. The

district court denied his motion. Vasquez was tried by a

jury and convicted of conspiracy to possess cocaine with



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intent to distribute and of possession of cocaine with intent

to distribute. The court sentenced him to 121 months in

prison.

Cleveland and Gray eventually pled guilty to

attempting to possess cocaine with intent to distribute and

to carrying or using a firearm during and in relation to a

drug trafficking crime, subject to their right to appeal any

adverse ruling by the district court on their motions to

suppress physical evidence and to suppress Gray's post-arrest

statement. The district court denied their motions and

sentenced each of them to 180 months in prison and 60 months

of supervised release.1 After the Supreme Court came down

with its Bailey decision, 116 S. Ct. 501, Cleveland and Gray ______

moved in the district court for relief from the conviction

for carrying or using a firearm in relation to a drug

trafficking crime. The court denied that motion.

II. Vasquez

A. The Search of Vasquez's Person: __________________________________

In his first point of error, Vasquez argues that

the district court erred in denying his motion to suppress

the physical evidence the agents found on his person. This

included a pager, address book, business cards, and notes

tying Vasquez to the other defendants. He contends that a

____________________

1. Rodriguez pleaded guilty to conspiracy and possession
charges and was also sentenced to 120 months in prison and 60
months of supervised release.

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wrongful de facto arrest occurred when he was initially

ordered out of the Mazda and handcuffed. (Only later was

Vasquez told he was under arrest and thereafter searched, by

which time the cocaine had been discovered in the Isuzu.)

Because the initial de facto arrest was allegedly without

probable cause, Vasquez argues that it was illegal and that

it tainted all subsequent events, causing the later search of

his person to violate the Fourth Amendment.

The district court held, however, and we agree,

that the agents had probable cause to arrest Vasquez at the

time they ordered him out of the Mazda and handcuffed him.

Accordingly, regardless of whether the arrest occurred then

or later, the arrest was legal and the subsequent search of

his person was proper. "[I]t is well established that '[i]f

an arrest is lawful, the arresting officers are entitled to

search the individual apprehended pursuant to that arrest.'"

United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir.) _____________ ________________

(quoting United States v. Uricoechea-Casallas, 946 F.2d 162, _____________ ___________________

165 (1st Cir. 1991)), cert. denied, 115 S. Ct. 193 (1994). ____________

"Law enforcement officers may effect warrantless

arrests provided that they have probable cause to believe

that the suspect has committed or is committing a crime."

United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir. _____________ _______________

1995) (citing United States v. Watson, 423 U.S. 411, 416-18 _____________ ______

(1976); Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975)). ________ ____



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"[The government] need only show that, at the time of the

arrest, the facts and circumstances known to the arresting

officers were sufficient to warrant a prudent person in

believing that the defendant had committed or was committing

an offense." Torres-Maldonado, 14 F.3d at 105. See also ________________ _________

Beck v. Ohio, 379 U.S. 89, 91 (1964). ____ ____

"Of course, probable cause must exist with respect

to each person arrested, and 'a person's mere propinquity to

others independently suspected of criminal activity does not,

without more, give rise to probable cause to search that

person.'" Martinez-Molina, 64 F.3d at 726 (quoting Ybarra v. _______________ ______

Illinois, 444 U.S. 85, 91 (1979)). "[C]ases in which courts ________

find that probable cause exists generally involve

substantially more than a momentary, random, or apparently

innocent association between the defendant and the known

criminal activity." Martinez-Molina, 64 F.3d at 727 _______________

(discussing cases).

Here, prior to seizing Vasquez, the agents had been

investigating Pagan and his drug trafficking operations for

several years. Before the events of this case, the agents

had learned from informants that Pagan was trafficking in

kilogram quantities of cocaine, shipping it from Puerto Rico

to Hartford, Connecticut and Springfield, Massachusetts. The

agents had learned that Pagan used couriers to transport the

cocaine. Some of Pagan's couriers had been arrested at the



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San Juan airport with several kilograms of cocaine in their

luggage and had admitted to working for Pagan.

Two confidential informants who had each proved

reliable in related matters had told DEA agents that among

the many vehicles Pagan used to transport drugs and money was

a white Isuzu Trooper. They each also related that Pagan's

transport vehicles often had a concealed, electronically-

controlled compartment used to hide whatever was being moved.

One of them asserted that he had seen that the white Isuzu

Trooper had such a compartment in the floor under the rear

seat.

The agents had also learned from one of the

informants and from other sources that Pagan's girlfriend

lived in apartment D-219 at the Connecticut apartment complex

and that Pagan used that apartment in his drug activities.

The apartment was listed under the name "J. Pagan." The DEA

had installed a pen register on the apartment's phone so

they could track calls made to and from that number.

On October 17, 1994, the pen register revealed a

sharp increase in phone activity from the Connecticut

apartment. Some of the numbers being called matched cellular

phone and beeper numbers that the agents knew belonged to

Pagan's previously identified drug associates. The agents

decided to begin physical surveillance of the Connecticut

apartment. This surveillance included agents stationed



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around the apartment complex and two agents who were equipped

with a video camera in an apartment that had a view of

Pagan's apartment.

A little after noon on October 18th, the agents

observed a Lexus and a Lincoln Town Car enter the apartment's

parking lot. The various movements of people and vehicles

that followed, coupled with the DEA's information about

Pagan's drug dealing, strongly indicated that a drug

transaction was taking place. Acosta, who had been driving

the Lexus, entered Pagan's apartment building followed by

Rodriguez, carrying a large black shoulder bag. Rodriguez

handed this bag to Acosta in the building's lobby. Later on,

the agents saw Acosta talking to Pagan on Pagan's balcony.

Vasquez exited the Lexus and walked over to

Rodriguez and the Lincoln carrying a cellular phone, one of

the "well known tools of the drug trade." United States v. _____________

De La Cruz, 996 F.2d 1307, 1311 (1st Cir.), cert. denied, 510 __________ ____________

U.S. 936 (1993). See also Martinez-Molina, 64 F.3d at 728. ________ _______________

Vasquez waited with Rodriguez inside the Lincoln until Acosta

came out with another man, Jorge Quinones, and spoke to

Vasquez. Then Quinones left, returning shortly in a brown

Oldsmobile. Vasquez and Rodriguez got into the Oldsmobile

and drove out of the complex.

An hour or so later Vasquez and Quinones returned,

followed by Rodriguez in a white Isuzu Trooper, exactly the



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car the agents had been told Pagan used to transport drugs

and drug proceeds. It was also the vehicle said to have a

hidden compartment for drugs and money in the floor under the

rear seat. While Pagan stood on his balcony overlooking the

parking lot, Acosta and Rodriguez were seen to be looking

into the Isuzu's back seat area, where the secret compartment

was said to be located.

At this point, the agents had probable cause to

believe that Vasquez, Rodriguez, Acosta, Pagan, and Quinones

were involved in a drug transaction, with the Isuzu Trooper

likely bearing the contraband. Rather than arrest the

suspects immediately, the agents chose to follow the Isuzu

Trooper and the Lexus as they drove to Boston.

What happened thereafter beginning with the

drive in tandem to Boston and ending with the agents'

intervention was wholly consistent with the existence of

an unfolding drug transaction and Vasquez's active

involvement. Vasquez and Rodriguez stood on a Boston street

corner, apparently checking the area for police. Later, and

after the agents had seen Acosta speak to Cleveland and Gray,

the agents spotted Vasquez inside the Mazda, to which he had

moved from the Lexus. Vasquez was still inside the Mazda

with Cleveland when the agents stopped the vehicles and

ordered everyone out.





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By this time, the agents had abundant evidence to

constitute probable cause that Vasquez was involved in an

ongoing drug trafficking crime and that his association with

the other suspects was not momentary, random, or innocent.

They had authority, therefore, at the time he was ordered

from the Mazda and handcuffed, to arrest Vasquez. The

district court did not err in refusing to suppress the

various items later found on Vasquez's person when he was

searched.

B. The Reasonable Doubt Instruction: ____________________________________

Vasquez asserts that the district court erred in

refusing to include "hesitate to act" language in its

reasonable doubt instruction. In particular, Vasquez insists

that, upon his objection to the omission, the court should

have complied with his request to tell the jury, "When we

talk about a reasonable doubt, we mean a doubt based upon

reason and common sense, the kind of doubt that would make a

reasonable person hesitate to act."

The short answer to this argument is that this

court has explicitly held that a district court's refusal to

include "hesitate to act" language in its explanation of

reasonable doubt to the jury does not constitute reversible

error. See United States v. Vavlitis, 9 F.3d 206, 212 (1st ___ _____________ ________

Cir. 1993); United States v. O'Brien, 972 F.2d 12, 15 (1st _____________ _______

Cir. 1992). Although we accepted an instruction that



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included such language in United States v. Drake, 673 F.2d _____________ _____

15, 21 (1st Cir. 1982), we have also criticized the "hesitate

to act" formulation. See Gilday v. Callahan, 59 F.3d 257, ___ ______ ________

264 (1st Cir. 1995) (characterizing the "hesitate to act"

language as "arguably unhelpful"), cert. denied, 116 S. Ct. ____________

1269 (1996); O'Brien, 972 F.2d at 15-16 (criticizing _______

instructions such as the "hesitate to act" formulation which

compare reasonable doubt to the decisional standard used by

individual jurors in their own affairs as trivializing the

constitutionally required burden of proof).

The Supreme Court has stated that the Constitution

does not require district courts to define reasonable doubt,

nor does it require trial courts who do choose to explain the

term to employ "any particular form of words . . . in

advising the jury of the government's burden of proof."

Victor v. Nebraska, 511 U.S. 1, 5 (1994). "Rather, 'taken as ______ ________

a whole, the instructions must correctly convey the concept

of reasonable doubt to the jury.'" Id. (quoting Holland v. ___ _______

United States, 348 U.S. 121, 140 (1954)). _____________

In instructing the jury on reasonable doubt, the

district court stated:

As I have said, the burden is upon the
Government to prove beyond a reasonable
doubt that a defendant is guilty of the
charge made against the defendant. It is
a strict and heavy burden, but it does
not mean that a defendant's guilt must be
proved beyond all possible doubt. It
does require that the evidence exclude


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any reasonable doubt concerning a
defendant's guilt.

A reasonable doubt may arise not
only from the evidence produced but also
from a lack of evidence. Reasonable
doubt exists when, after weighing and
considering all the evidence, using
reason and common sense, jurors cannot
say that they have a settled conviction
of the truth of the charge.

Of course, a defendant is never to
be convicted on suspicion or conjecture.
If, for example, you view the evidence in
the case as reasonably permitting either
of two conclusions one that a
defendant is guilty as charged, the other
that the defendant is not guilty you
will find the defendant not guilty.

It is not sufficient for the
Government to establish a probability,
though a strong one, that a fact charged
is more likely to be true than not true.
That is not enough to meet the burden of
proof beyond reasonable doubt. On the
other hand, there are very few things in
this world that we know with absolute
certainty, and in criminal cases the law
does not require proof that overcomes
every possible doubt.

Concluding my instructions on the
burden, then, I instruct you that what
the Government must do to meet its heavy
burden is to establish the truth of each
part of each offense charged by proof
that convinces you and leaves you with no
reasonable doubt, and thus satisfies you
that you can, consistently with your oath
as jurors, base your verdict upon it. If
you so find as to a particular charge
against a defendant, you will return a
verdict of guilty on that charge. If, on
the other hand, you think there is a
reasonable doubt about whether the
defendant is guilty of a particular
offense, you must give the defendant the



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benefit of the doubt and find the
defendant not guilty of that offense.


This explanation correctly conveyed the concept of

reasonable doubt to the jury.

III. Cleveland and Gray

A. The Vehicle Searches: ________________________

In their first point of error, Cleveland and Gray

argue that the district court erred in refusing to grant

their motion to suppress the evidence found in the agents'

search of the Isuzu Trooper and of the Mazda.

"A police officer may effect a warrantless search

of the interior of a motor vehicle on a public thoroughfare

as long as he has probable cause to believe that the vehicle

contains contraband or other evidence of criminal activity."

United States v. Staula, 80 F.3d 596, 602 (1st Cir.), cert. _____________ ______ _____

denied, 117 S. Ct. 156 (1996). See also California v. ______ _________ __________

Acevedo, 500 U.S. 565, 570 (1991); Chambers v. Maroney, 399 _______ ________ _______

U.S. 42, 46-52 (1970); United States v. Martinez-Molina, 64 _____________ _______________

F.3d 719, 730 (1st Cir. 1995). When the police have probable

cause to search a vehicle, they may also search closed

containers within that vehicle. See Acevedo, 500 U.S. at ___ _______

569-81.

Even assuming that Cleveland and Gray have standing

to contest the searches in this case, a problematic

proposition in itself, the agents clearly had probable cause



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to search the vehicles. As explained in Part II-A, above, by

the time the agents stopped the two cars, they had probable

cause to believe that the defendants were involved in a drug

transaction and that the Trooper contained contraband. The

movements of the Mazda in following the Lexus to rendezvous

with the Isuzu, when combined with the exchange of personnel

Gray moving into the Isuzu and Vasquez entering the Mazda

provided the agents with probable cause to believe that

Cleveland and Gray were also involved in the drug transaction

and that the Mazda contained contraband. The warrantless

search thus did not violate the Fourth Amendment, and the

district court did not err in refusing to suppress the

evidence found in the two vehicles.

B. Gray's Statement: ____________________

In the next point of error, Gray asserts that the

district court should have suppressed the statement he made

to Agent Travers in the DEA office after his arrest. Gray

claims that he had invoked his right to counsel before making

the statement and that the agents coerced the statement from

him through intimidation.

The district court, after holding two evidentiary

hearings at which it heard the testimony of Gray, Agent

Travers, and another agent present at DEA headquarters the

night of Gray's arrest, concluded that Gray's various

allegations of coercive activity by the agents were not



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credible. The court also found that Gray had initiated the

conversation with the agents that led to his confession by

knocking on the door of his cell. Gray then told Agent

Travers that he wished to speak with him about the events

leading up to his arrest and signed a written waiver of his

rights. After examining the record, we believe that these

findings of fact by the district court were not clearly

erroneous. See United States v. Valle, 72 F.3d 210, 213-14 ___ ______________ _____

(1st Cir. 1995) ("In reviewing orders granting or denying

suppression motions, this court scrutinizes a district

court's factual findings, including its credibility

determinations, for traces of clear error.").

In this case, as in Valle, "whether or not to _____

suppress the challenged statements boils down to a

credibility call" and "[s]uch calls are grist for the

district court's mill." Valle, 72 F.3d at 214. Since Gray _____

initiated the contact with the agents that led to his

statement after he had invoked his right to counsel, the

district court was correct to deny the motion to suppress.

See Edwards v. Arizona, 451 U.S. 477, 484-86 (1981) (holding ___ _______ _______

that once a defendant has asked for an attorney, she is not

subject to further interrogation by the police until after

counsel has been made available to her unless she herself

initiates further communication with the authorities); United ______

States v. Fontana, 948 F.2d 796, 805-06 (1st Cir. 1991) ______ _______



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(noting that initiation of interrogation by the accused has

been broadly interpreted); Watkins v. Callahan, 724 F.2d _______ ________

1038, 1042 (1st Cir. 1984) (stating that "an accused is not

powerless to countermand an election to talk to counsel").

Similarly, we find no clear error in the district

court's determination that the agents did not commit the

coercive acts alleged by Gray. See United States v. Burns, ___ _____________ _____

15 F.3d 211, 216 (1st Cir. 1994) ("Although the ultimate

issue of voluntariness is a question of law subject to

plenary review, we will accept the district court's

subsidiary findings of fact unless they are 'clearly

erroneous.'").

Based on the facts as found by the district court,

the court's holding that Gray's statement was voluntary and

therefore admissible at trial under 18 U.S.C. 3501 was

proper.

The court applied the totality of the circumstances

test mandated by 18 U.S.C. 3501(b), paying particular

attention to the factors identified by that section.2 Gray

____________________

2. 18 U.S.C. 3501(b) states:
(b) The trial judge in determining the issue of
voluntariness shall take into consideration all
the circumstances surrounding the giving of the
confession, including (1) the time elapsing
between arrest and arraignment of the defendant
making the confession, if it was made after arrest
and before arraignment, (2) whether such defendant
knew the nature of the offense with which he was
charged or of which he was suspected at the time
of making the confession, (3) whether or not such

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gave his statement within six hours of his arrest, bringing

this case within the rule of 3501(c).3 The court found

that Gray knew the nature of the offense of which he was

suspected at the time he made the confession; knew that he

was not required to make any statement and that any statement

he did make could be used against him; and had been advised

prior to the questioning of his right to the assistance of

counsel. The court acknowledged that Gray had been without

the assistance of counsel when he gave his statement, but

held that in this case, this fifth factor was heavily




____________________

defendant was advised or knew that he was not
required to make any statement and that any such
statement could be used against him, (4) whether
or not such defendant had been advised prior to
questioning of his right to the assistance of
counsel; and (5) whether or not such defendant was
without the assistance of counsel when questioned
and when giving such confession.

The presence or absence of any of the above-
mentioned factors to be taken into consideration
by the judge need not be conclusive on the issue
of voluntariness of the confession.


3. 18 U.S.C. 3501(c) states, in relevant part:
(c) In any criminal prosecution by the United
States . . . a confession made or given by a
person who is a defendant therein, while such
person was under arrest . . . shall not be
inadmissible solely because of delay in bringing
such person before a magistrate . . . if such
confession was made or given by such person within
six hours immediately following his arrest or
other detention . . . .


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outweighed by the other four factors and by the case's

particular circumstances.

We agree with the district court that Gray's

statement was voluntary.

C. The "Carry" Issue: _____________________

Cleveland and Gray pleaded guilty to violating 18

U.S.C. 924(c)(1). That statute imposes a five-year prison

term on anyone 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). After the Supreme Court's

opinion in Bailey, they both sought revocation of their ______

convictions based on guilty pleas to the 924(c)(1) charges.

Gray, against whom judgment had not yet entered, filed an

unsuccessful Motion to Correct Sentence under Fed. R. Crim.

P. 35(c), and Cleveland, against whom judgment had entered

and whose direct appeal was already pending, filed an equally

unavailing motion under 28 U.S.C. 2255. The various

appeals were consolidated. The government does not dispute

our jurisdiction to consider on the merits Cleveland and

Gray's claims that their guilty pleas are invalid in light of

Bailey. Since we reject those claims, we do not address any ______

potential jurisdictional question stemming from Cleveland's

2255 appeal.

The broad definition of "use" formerly employed by

this circuit and under which Cleveland and Gray pleaded



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guilty was unanimously disapproved by the Supreme Court in

Bailey. Stating the need to interpret statutory terms in ______

accordance with their "ordinary or natural" meaning, the

Court relied on the dictionary definition of "use" in holding

that a conviction under the "use" prong of the statute could

only be upheld if the defendant "actively employed the

firearm during and in relation to the predicate crime."

Bailey, 116 S. Ct. at 506-509. Mere possession or storage of ______

the weapon is insufficient. Id. at 508-09. ___

Under Bailey, Cleveland and Gray cannot be ______

convicted under 924(c)'s "use" prong. The guns remained in

the Mazda's trunk throughout the events in question; neither

Cleveland nor Gray "actively employed" the firearm. Their

guilty pleas might still, however, be upheld under the

statute's "carry" prong.

While Bailey did not address the requirements ______

relative to "carry," the Supreme Court stated that part of

its rationale for defining "use" more narrowly was to

preserve a separate, nonsuperfluous meaning for "carry."

Bailey, 116 S. Ct. at 507. The Court wrote, "Under the ______

interpretation we enunciate today, a firearm can be used

without being carried, e.g., when an offender has a gun on ____

display during a transaction, or barters with a firearm

without handling it; and a firearm can be carried without

being used, e.g., when an offender keeps a gun hidden in his ____



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clothing throughout a drug transaction." Id. at 507. The ___

Court remanded the case for a determination of whether a

defendant could be convicted under the "carry" prong either

for having a gun inside a bag in a locked car trunk or for

having an unloaded firearm in a locked footlocker inside a

bedroom closet. Id. at 509. ___

Bailey leaves us with two questions concerning the ______

proper interpretation of "carry." First, must a firearm be

on a suspect's person to be "carried" or can one also "carry"

a firearm in a vehicle? Second, if one can "carry" a firearm

in a vehicle, must the weapon be immediately accessible to

the defendant to be "carried"?

The first question is easily answered. We have

already held post-Bailey that a firearm can be "carried" in a ______

boat, a conveyance that seems indistinguishable for present

purposes from a land vehicle like a car. United States v. ______________

Ramirez-Ferrer, 82 F.3d 1149 (1st Cir.), cert. denied, 117 S. ______________ ____________

Ct. 405 (1996).

This result accords both with our pre-Bailey ______

"carry" cases and with the holdings of the other circuits to

have considered this issue post-Bailey. See, e.g., United ______ __________ ______

States v. Plummer, 964 F.2d 1251, 1252-54 (1st Cir.) ______ _______

(acknowledging the defendant-driver's concession that the

presence of a gun in his vehicle either in the driver's seat

or on the front passenger seat was sufficient to establish



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that he had "carried" a gun under 924(c)(1)), cert. denied, ____________

506 U.S. 926 (1992); United States v. Eaton, 890 F.2d 511, ______________ _____

511-12 (1st Cir. 1989) (acknowledging the defendant's

concession that he had "carried" a gun for the purposes of

924(c)(1) when the gun had been under the front seat of the

truck he was driving), cert. denied, 495 U.S. 906 (1990); _____________

United States v. Giraldo, 80 F.3d 667, 677-78 (2d Cir.) ______________ _______

(upholding a 924(c)(1) conviction for "carrying" a gun in a

car), cert. denied, 117 S. Ct. 135 (1996); United States v. ____________ ______________

Mitchell, No. 95-5792, 1997 WL 12115, at *2-4 (4th Cir. Jan. ________

15, 1997) (same); United States v. Fike, 82 F.3d 1315, 1327- _____________ ____

28 (5th Cir.) (stating that a gun may be "carried" in a car),

cert. denied, 117 S. Ct. 241-42 (1996); United States v. ____________ _____________

Riascos-Suarez, 73 F.3d 616, 623 (6th Cir.) (same), cert. ______________ _____

denied, 117 S. Ct. 136 (1996); United States v. Molina, 102 ______ _____________ ______

F.3d 928, 930-32 (7th Cir. 1996) (same); United States v. _____________

Willis, 89 F.3d 1371, 1377-79 (8th Cir.) (same), cert. ______ _____

denied, 117 S. Ct. 273 (1996); United States v. Staples, 85 ______ _____________ _______

F.3d 461, 464 (9th Cir.) (same), cert. denied, 117 S. Ct. 318 ____________

(1996); United States v. Miller, 84 F.3d 1244, 1256-61 (10th _____________ ______

Cir.) (same), cert. denied, 117 S. Ct. 443 (1996); United ____________ ______

States v. Farris, 77 F.3d 391, 395 (11th Cir.) (upholding a ______ ______

924(c)(1) conviction for "carrying" a gun in a car), cert. _____

denied, 117 S. Ct. 241 (1996). ______





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On the second question, we agree with the Fourth,

Seventh and Tenth Circuits that a gun may be "carried" in a

vehicle for the purposes of 924(c)(1) without necessarily

being immediately accessible to the defendant while it is

being transported. See Miller, 84 F.3d at 1260; Molina, 102 ___ ______ ______

F.3d at 930-32; Mitchell, at *3. ________

Since Bailey, this Circuit has twice faced ______

questions concerning the scope of the statute's "carry"

prong. In United States v. Manning, 79 F.3d 212 (1st Cir.), _____________ _______

cert. denied, 117 S. Ct. 147 (1996), we held that carrying a _____________

briefcase containing a gun, pipe bombs, drugs, and drug

paraphernalia was sufficient to fulfill the "carry"

requirement. In Ramirez-Ferrer, already noted, we held that ______________

a loaded revolver covered by a T-shirt within the defendant's

reach on a cocaine-laden boat upon which the defendant was

travelling was being "carried" for the purposes of

924(c)(1). In neither case, however, did we have to decide

whether a firearm in a vehicle in which a defendant is

travelling needs to be within easy reach to be "carried" for

the purposes of 924(c)(1).

Since some circuits have, since Bailey, continued ______

to rely upon their pre-Bailey "carry" case law, we look at ______

ours as well, but find no case that is entirely on point.

See, e.g., United States v. Castro-Lara, 970 F.2d 976, 982-83 _________ _____________ ___________

(1st Cir. 1992) (upholding a conviction under 924(c)(1)



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when the gun was in a briefcase in a locked car trunk without

specifying whether the conviction was under the statute's

"use" or "carry" prong), cert. denied, 508 U.S. 962 (1993); ____________

Plummer, 964 F.2d at 1252-54 (acknowledging the defendant- _______

driver's concession that the presence of a gun in his vehicle

either in the driver's seat or on the front passenger seat

was sufficient to establish that he had "carried" a gun under

924(c)(1)); Eaton, 890 F.2d at 511-12 (acknowledging the _____

defendant's concession that he had "carried" a gun for the

purposes of 924(c)(1) when the gun had been under the front

seat of the truck he was driving).

"When a word is not defined by statute, we normally

construe it in accord with its ordinary or natural meaning."

Smith v. United States, 508 U.S. 223, 228 (1993). In Bailey, _____ _____________ ______

the Supreme Court turned to the dictionary for help in

determining the meaning of "use," Bailey, 116 S. Ct. at 506, ______

so we do the same with "carry."

Webster's Third New International Dictionary of the ___________________________________________________

English Language Unabridged 343 (3d ed. 1971) defines "carry" ___________________________

as, "1: to move while supporting (as in a vehicle or in

one's hands or arms): move an appreciable distance without

dragging: sustain as a burden or load and bring along to

another place." Webster's goes on to list many other _________

definitions of the word and then, in differentiating "carry"

from some of its synonyms, states:



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CARRY indicates moving to a location some
distance away while supporting or
maintaining off the ground. Orig.
indicating movement by car or cart, it is
a natural word to use in ref. to cargoes
and loads on trucks, wagons, planes,
ships, or even beasts of burden.


Id. This definition, therefore, clearly includes the ___

transport of a firearm by car; the concept of whether or not

the carried item is within reach plays no part in the

definition.

Black's Law Dictionary 214 (6th ed. 1990) defines _______________________

"carry" as, "To bear, bear about, sustain, transport, remove, _________

or convey. To have or bear upon or about one's person, as a ______

watch or weapon; locomotion not being essential . . . ."

(emphasis supplied). However, Black's defines the specific _______

phrase "carry arms or weapons" more narrowly as, "To wear,

bear, or carry them upon the person or in the clothing or in

a pocket, for the purpose of use, or for the purpose of being

armed and ready for offensive or defensive action in case of

a conflict with another person." Id. ___

The latter Black's definition of "carry arms or _______

weapons" limits "carrying" to the defendant's person and so

at least implies accessibility. However, even the circuits

which have read an immediate accessibility requirement into

"carry" under 924(c)(1) have never limited the statutory

language to "carrying" a firearm on the person. Indeed, such

circuits, like the others to confront the issue, have all


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upheld convictions for "carrying" a weapon in a car. See ___

United States v. Cruz-Rojas, 103 F.3d 283, 286 (2d Cir. 1996) _____________ __________

(remanding two "carry" convictions to determine if a gun

under a car's dashboard was accessible to either defendant);

Riascos-Suarez, 73 F.3d at 623 (upholding a "carry" ______________

conviction when the gun was in a car near the driver's seat);

United States v. Willett, 90 F.3d 404, 406-07 (9th Cir. 1996) _____________ _______

(holding that a gun transported in a car was "carried"

because it was easily accessible).

We strongly doubt given the omnipresence of

automobiles in today's world and in drug dealing, and given

the basic meaning of "carry" as including transport by

vehicle that Congress, in prescribing liability for anyone

who "uses or carries" a firearm during or in relation to a

drug trafficking offense, meant to exclude a defendant who

transports the gun in his car, rather than on his person, for

use in a drug transaction. Hence the Black's Law Dictionary ______________________

restricted definition of the phrase "carry arms or weapons"

seems inapposite here.

It is true, of course, that to come under

924(c)(1), "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."

Smith, 508 U.S. at 238. In certain circumstances, a _____

firearm's immediate accessibility to a defendant might be



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relevant to determining whether or not he was carrying it

"during and in relation to" a drug trafficking crime, as the

statute requires. 18 U.S.C. 924(c)(1). But a firearm need

not always be instantly accessible in order to be carried

"during and in relation to" a drug trafficking crime. Here,

the evidence shows that the defendants had placed the three

firearms in question in the Mazda's trunk and, when arrested,

were carrying them for the purpose of using them to rob their

suppliers during the ongoing drug trafficking crime.

Evidence of this purpose plainly demonstrated the necessary

nexus to the drug trafficking offense wholly apart from

whether the guns were within the immediate reach of those

seated in the car at the time they were stopped by the

agents.

As noted above, the Fourth, Seventh, and Tenth

Circuits have held that a gun does not need to be readily

accessible to be "carried" in a vehicle. See Mitchell, at ___ ________

*2-4; Molina, 102 F.3d at 930-32; Miller, 84 F.3d at 1256-61. ______ ______

Other circuits, while not explicitly deciding the

issue one way or the other, appear to be leaning toward

adopting the same approach. See United States v. Pineda- ___ _____________ _______

Ortuno, 952 F.2d 98, 103-04 (5th Cir.) (a pre-Bailey case ______ ______

holding that the circuit's cases requiring a showing that the

gun was within the defendant's reach during the commission of

the drug offense did not apply when the gun was "carried" in



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a vehicle), cert. denied, 504 U.S. 928 (1992); United States ____________ _____________

v. Fike, 82 F.3d 1315, 1327-28 (5th Cir. 1996) (a post-Bailey ____ ______

case upholding a defendant's conviction under 924(c)(1) for

"carrying" a gun that was within his reach in a car but not

stating that accessibility was a requirement); United States _____________

v. Rivas, 85 F.3d 193, 194-96 (5th Cir.) (same), cert. _____ _____

denied, 117 S. Ct. 593 (1996); United States v. Willis, 89 ______ _____________ ______

F.3d 1371, 1377-79 (8th Cir. 1996) (relying on pre-Bailey ______

case law to hold that transporting a firearm in the passenger

compartment of a vehicle satisfies the "carry" prong of

924(c)(1) but not addressing the weapon's accessibility);

United States v. Caldwell, 97 F.3d 1063, 1068-70 (8th Cir. _____________ ________

1996) (upholding a conviction under 924(c)(1)'s "carry"

prong for a case in which the defendant's gun was in a car's

hatchback, an area the court regarded as within the car's

occupants' reach); United States v. Farris, 77 F.3d 391, 395 ______________ ______

(11th Cir. 1996) (relying on pre-Bailey case law to uphold a ______

924(c)(1) conviction for a defendant who was sitting in the

back seat of a car while the firearm in question was in the

glove compartment but not discussing whether the defendant

could easily have reached the gun).

We recognize that the Second, Sixth, and Ninth

Circuits have taken a contrary position, requiring that the

firearms be immediately accessible. See Giraldo, 80 F.3d at ___ _______





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676-78; Riascos-Suarez, 73 F.3d at 623-24; Staples, 85 F.3d ______________ _______

at 464. We find the reasoning of these courts unpersuasive.

In Giraldo, the Second Circuit relied entirely on _______

its pre-Bailey case United States v. Feliz-Cordero, 859 F.2d ______ ______________ _____________

250 (2d Cir. 1988), in holding that a gun transported in a

vehicle must be immediately accessible to be "carried." But

Feliz-Cordero merely stated that "carry" should be given its _____________

literal meaning. The court thought that the literal meaning

of "carry," when the "carrying" was done by a vehicle,

required the gun to be within reach during the commission of

the drug offense. Feliz-Cordero, 859 F.2d at 253. The court _____________

did not refer to any authority for this proposition and cited

to only one case, United States v. Brockington, 849 F.2d 872 _____________ ___________

(4th Cir. 1988). Brockington does not so much as mention an ___________

immediate accessibility requirement, nor does it discuss the

meaning of "carry." The only relevance Brockington has to ___________

this issue is that that panel upheld the "carry" conviction

of a taxi cab passenger who had a loaded pistol under the

floormat beneath his seat.

The Sixth Circuit in Riascos-Suarez inferred the ______________

immediate availability requirement from the Supreme Court's

admonitions in Bailey that "use" must mean more than ______

"possession," Bailey, 116 S. Ct. at 508, and that a defendant ______

could not be charged under 924(c)(1) for mere storage of a

weapon, id. The easy reach requirement, the Riascos-Suarez ___ ______________



-32-













panel reasoned, is necessary to distinguish "carry" from

possession and storage. Riascos-Suarez, 73 F.3d at 623. ______________

We disagree. We question the degree to which an

easy reach requirement would differentiate "carry" from

"possess." More importantly, we agree with the Tenth Circuit

that the distinguishing characteristic of "carry" is not the

instant availability of the item carried, but the fact that

the item is being moved from one place to another by the

carrier, either personally or with the aid of some

appropriate vehicle. See Miller, 84 F.3d at 1260. ___ ______

The Ninth Circuit's decision in Staples relied _______

primarily on its earlier opinion in United States v. ______________

Hernandez, 80 F.3d 1253, 1256-58 (9th Cir. 1996) (holding _________

that a gun in a locked toolbox was not "carried" under

924(c)(1)), in stating that a firearm had to be immediately

available for use to be "carried" in a vehicle. The

Hernandez panel looked to find the ordinary or natural _________

meaning of "carry." But its quotation from Webster's _________

definition of "carry," supra, was selective, omitting the _____

definition's references to vehicles. The court also quoted

from Black's definition of the single phrase, "carry arms or _______

weapons," supra, and cited the Sixth Circuit's Riascos-Suarez _____ ______________

opinion. As we have discussed, however, the ordinary meaning

of the term "carry" includes transport by vehicle and affords

no basis for imposing an accessibility requirement.



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Turning to the case before us, both Cleveland and

Gray pled guilty to using or carrying a weapon during and in

relation to a drug trafficking offense. They do not now

contend, nor could they, that the three loaded handguns found

in the trunk of their car alongside rope and duct tape were

unrelated to the drug trafficking offense they were

committing at the time they were apprehended. In fact,

Cleveland admitted at the suppression hearing that he and

Gray intended to use the guns to rob the drugs from their

suppliers. Their challenge to their convictions on the

924(c)(1) charge consists solely of the claim that, after

Bailey, they can not be convicted under the statute's "use" ______

prong and that a conviction under the "carry" prong would

require the guns to have been easily accessible. As under

the standard definition of "carry" the guns were being

"carried," and as we can see no basis for holding that the

guns' lack of instant accessibility precluded them from being

"carried," we affirm Cleveland's and Gray's convictions for

violations of 18 U.S.C. 924(c)(1).

Affirmed. ________













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