United States v. Guerrier

United States Court of Appeals
For the First Circuit

No. 10-2315

UNITED STATES OF AMERICA,

Appellee,

v.

VIGGENS GUERRIER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Stephen J. McAuliffe, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.

Leslie W. O'Brien for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.

December 22, 2011
 THOMPSON, Circuit Judge.

Preface

Around midnight on a January evening in 2009, Viggens

Guerrier and Christian German ducked into a crack house at 371

Manchester Street in Manchester, New Hampshire, looking for Dwight

Bennett, a drug dealer who made a living taking crack from New York

to New Hampshire for sale there.1 They found him, and an irate

German then robbed him of $1,500 and 10 grams of crack at gunpoint

while Guerrier stood guard at the crack-house door. The backstory

behind this – the "CliffsNotes" version, at least – is easily told.

German was himself a drug dealer of some notoriety, and he and his

drug-pushing partner, Jay Galeano, had agreed to let Bennett sell

crack out of that house to their clients, provided they got a piece

of the action.2 But Bennett did not pay up, which is why German

grabbed his old friend Guerrier (for extra muscle, just in case)

and strode into the crack house that fateful night, with a gun at

the ready.

Law enforcement later collared the duo, and, with

German's help, a jury convicted Guerrier of conspiring to violate

the Hobbs Act (sometimes called the "Act," for easy reading) – a

1
We narrate the trial evidence in the light most flattering
to the prosecution's theory of the case, see, e.g., United States
v. Manor, 633 F.3d 11, 12, 13-14 (1st Cir. 2011), skipping over
nonessentials.
2
Jay Galeano's name is spelled several ways in the record, so
we use the spelling that the parties use in their briefs.

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statute that (among other things) makes a federal crime out of

robbery or conspiracy to rob that "in any way or degree obstructs,

delays, or affects" interstate or international commerce. See 18

U.S.C. § 1951(a)-(b). Guerrier now appeals his conviction (but not

his sentence of 6½ years in prison plus 3 years of supervised

release), raising four issues, none of which requires reversal.

Sufficiency of the Indictment

Citing Federal Rule of Criminal Procedure 12(b), Guerrier

moved pretrial to dismiss the indictment. Prosecutors had produced

no evidence during discovery that his acts had affected interstate

commerce, leaving them unable to satisfy the Act's jurisdictional

prerequisite – or so he claimed. The district judge made quick

work of Guerrier's motion, denying it in a margin order. And our

de novo review of this legal issue, see, e.g., United States v.

Lopez-Lopez, 282 F.3d 1, 9 (1st Cir. 2002), convinces us that the

judge got the matter exactly right.

When grading an indictment's sufficiency, we look to see

whether the document sketches out the elements of the crime and the

nature of the charge so that the defendant can prepare a defense

and plead double jeopardy in any future prosecution for the same

offense. See, e.g., United States v. Eirby, 262 F.3d 31, 37-38

(1st Cir. 2001). Guerrier does not suggest that his indictment

flunks this test. And his attempt to sink a facially valid

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indictment with a motion to dismiss that targets the strength of

the government's evidence misfires.

What counts in situations like this are the charging

paper's allegations, which we must assume are true. See, e.g.,

United States v. Bohai Trading Co., 45 F.3d 577, 578 n.1 (1st Cir.

1995). Consistent with that rule, courts routinely rebuff efforts

to use a motion to dismiss as a way to test the sufficiency of the

evidence behind an indictment's allegations, see, e.g., United

States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009); United States

v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006); United States v.

Salman, 378 F.3d 1266, 1268 (11th Cir. 2004) (per curiam); United

States v. De Laurentis, 230 F.3d 659, 660 (3d Cir. 2000); United

States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996); United States

v. Mann, 517 F.2d 259, 267 (5th Cir. 1975) – even when the

challenge centers on the adequacy of the evidence concerning the

interstate-commerce aspects of a Hobbs-Act offense, see United

States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (stressing

that unless prosecutors have "made what can fairly be described as

a full proffer of the evidence [they] intend[] to present at trial

to satisfy the jurisdictional element of the offense, the

sufficiency of the evidence is not appropriately addressed on a

pretrial motion to dismiss an indictment").3 Ultimately, we can do

3
See generally United States v. Sampson, 371 U.S. 75, 78-79
(1962) (deeming it unimportant that none of the charges had been
"established by evidence" at the motion-to-dismiss stage, because

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no better than repeat what the Supreme Court said in a related

context over 55 years ago: in the ordinary course of events, a

technically sufficient indictment handed down by a duly empaneled

grand jury "is enough to call for trial of the charge on the

merits." Costello v. United States, 350 U.S. 359, 363 (1956)

(explaining that the Fifth Amendment's grand-jury guarantee does

not give defendants the right to a "preliminary trial to determine

the competency and adequacy of the evidence" undergirding the

indictment). Tellingly, Guerrier cites no cases supporting his

position, and, unsurprisingly, we know of none either. The net

result is that the judge correctly denied Guerrier's motion to

dismiss the indictment.

Un-Mirandized Statements

Guerrier also moved pretrial to suppress prearrest

statements made during an interview with his parole officer and two

law-enforcement agents. His argument was a simple one: under the

totality of the circumstances, they had had him "in custody" and

therefore should have advised him of his Miranda rights before they

began asking questions. Miranda v. Arizona, 384 U.S. 436, 478-79

(1966). Guerrier did not testify at the suppression hearing. But

the parole and law-enforcement officers did, and this is what they

say happened, as credited by the judge (and he committed no clear

"the indictment must be tested by its sufficiency to charge an
offense").

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error in doing that, see, e.g., United States v. Hughes, 640 F.3d

428, 434 (1st Cir. 2011)):

Looking into the Bennett robbery, officers heard that

German and Guerrier had probably done it. German was no stranger

to police. They had pegged him as the chief culprit in a slew of

other drug-dealer robberies, and they wanted Guerrier to help nail

him. Having learned that Guerrier was on parole from a prior drug-

related offense, FBI Special Agent Michael Schneider asked

Guerrier's parole officer, Marc O'Donoghue, to help set up an

interview. And O'Donoghue did what he could.

At Guerrier's next regularly-scheduled parole meeting,

Schneider and a colleague, Manchester Detective Steven Coco, showed

up – dressed in plain clothes with their weapons concealed – and

camped outside O'Donoghue's office while O'Donoghue told Guerrier

that some men wanted to see him. O'Donoghue then walked Guerrier

over to Schneider and Coco, who introduced themselves as law-

enforcement agents. Schneider calmly told Guerrier that they

wanted to speak with him about a matter unrelated to his parole

status, that he was not under arrest, and that he did not have to

talk to them if he did not want to. But if he was game, Schneider

added, they could chat over a cup of coffee in a more relaxed

setting. Guerrier said okay, or something to that effect.

The foursome – Schneider, Coco, O'Donoghue, and Guerrier

– got into Schneider's unmarked Ford Explorer. Schneider drove,

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Coco rode in the front passenger seat, and Guerrier and O'Donoghue

sat in back. Keeping the doors unlocked, Schneider cruised to a

Dunkin Donuts, about five minutes away from O'Donoghue's office.

He bought Guerrier a hot chocolate at the drive-thru and then

parked in a nearby strip-mall parking lot. Other people were

milling about there.

Turning to Guerrier, Schneider thanked him for taking the

time out of his day to tag along with them and, in a low-key way,

said that they hoped he could help them with the Bennett robbery.

But Schneider stressed to him that he did not have to say anything

to them if he did not feel like it, that he was not under arrest,

and that they would drive him wherever he wanted if he wanted out.

Guerrier piped in, saying that German had asked for his help in

collecting some money, that he had driven him to 371 Manchester

Street, and that he had seen him take Bennett into a bedroom. But

he adamantly insisted that he knew nothing about a robbery.

That did not go over well with Schneider, because some of

what Guerrier said clashed with what law enforcement knew.

Schneider was "frustrated," though he stayed calm as he laid out

for Guerrier the evidence against him. Actually, neither Schneider

nor the others ever yelled at Guerrier or threatened to arrest him.

Also, Guerrier never looked nervous or scared, and he never asked

to stop the interview, which lasted 20 to 25 minutes.

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 Once Schneider realized that he was not getting anywhere

with Guerrier, he offered to drop Guerrier off at a place of his

(Guerrier's) choosing. O'Donoghue then spoke up, saying that he

still had to conduct his previously-scheduled meeting with

Guerrier, so Schneider drove them back to O'Donoghue's office.

When their meeting ended, O'Donoghue arrested Guerrier for failing

a drug test two months earlier and for visiting 371 Manchester

Street, a well-known crack house. That was the first Guerrier had

heard about the failed drug test. And neither Schneider nor Coco

knew that O'Donoghue was going to arrest Guerrier.

Everyone pretty much knows that the Miranda rule tells

police not to question a suspect in custody unless they first

advise him of his right to remain silent, among other things.

Miranda, 384 U.S. at 478-79; accord Stansbury v. California, 511

U.S. 318, 322 (1994) (per curium). Following the evidentiary

hearing, the judge here concluded that Miranda was not in play

because the complained-of interview was not custodial and

Guerrier's statements "were completely voluntary," so he orally

denied the motion. Guerrier takes issue with this ruling. As

always, we review the judge's factfinding under the deferential

clear-error standard (as we mentioned above), but we give a fresh

look to how he applied the law to the facts. See, e.g., Hughes,

640 F.3d at 434. When all is said and done, we see no error.

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 A person need not be under arrest for Miranda rights to

arise. Id. at 435. But he must be in "custody," because

precustodial questioning does not require Miranda warnings. Id.

Normally an inquiring court uses a two-part test to see if a person

is in custody for Miranda purposes: first the court examines the

circumstances surrounding the questioning and then it sees whether

those circumstances would cause a reasonable person to have

understood his situation to be comparable to a formal arrest. See,

e.g., Thompson v. Keohane, 516 U.S. 99, 112 (1995); Hughes, 640

F.3d at 435; United States v. Ellison, 632 F.3d 727, 729 (1st Cir.

2010). Several factors guide this analysis, including "(without

limitation) where the questioning occurred, the number of officers,

the degree of physical restraint, and the duration and character of

the interrogation." United States v. Teemer, 394 F.3d 59, 66 (1st

Cir. 2005).

Measured against these legal markers, the complained-of

encounter did not rise to the level of a custodial interrogation.

True, officers questioned Guerrier in an unmarked auto. But that

fact does not by itself implicate Miranda, given that a prearrest

interview "at a police station is not automatically deemed

custodial." Teemer, 394 F.3d at 66 (citing California v. Beheler,

463 U.S. 1121, 1125 (1983) (per curiam)). Focusing on the

atmospherics, then, we see a relatively calm and nonthreatening

prearrest interaction. Schneider politely told Guerrier more than

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once that he was not under arrest, that he need not answer any

questions, and that he could come or go as he pleased. See, e.g.,

United States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007)

(stressing that details like these support a no-custody finding);

Ellison, 632 F.3d at 730 (similar). And Guerrier expressed no

qualms about talking with them. Schneider also parked the auto in

a busy public lot and left the doors unlocked. See, e.g., United

States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999) (finding no

custody in part because the interview occurred on a "public

highway," which is "a neutral setting that police officers are not

in a position to dominate as they are, for example, an

interrogation room at a jailhouse"). He and the others wore plain

clothes and kept their weapons hidden. See, e.g., Hughes, 640 F.3d

at 436 (finding no custody in a factually similar situation). No

one screamed at Guerrier, badgered him for answers, or menaced him

in any way. See, e.g., id. at 437 (highlighting caselaw finding no

custody where officers acted in a similarly nonthreatening way).

And the interview lasted a relatively short time too, roughly 20-25

minutes. See, e.g., id. (ruling that an interview lasting 90

minutes was not custodial); United States v. Nishnianidze, 342 F.3d

6, 14 (1st Cir. 2003) (holding that a 45-minute interview did not

implicate Miranda). All of this supports the judge's ruling that

the interview was noncustodial. See, e.g., Hughes, 640 F.3d at

436-37; Ellison, 632 F.3d at 730. That one parole and two law-

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enforcement officers were present during the questioning does not

tip the custody balance in Guerrier's favor either. See, e.g.,

Hughes, 640 F.3d at 436.

Despite not testifying at the suppression hearing,

Guerrier argues on appeal that because he knew that he had taken

drugs and a drug test before running into Schneider and the others

at O'Donoghue's office, "he must have known" before Schneider

kicked off the interview that he had flunked that test and that his

next stop was jail anyway – so, he says, a reasonable person would

not have felt free to leave, which means that he was in custody

under Miranda. While it is debatable whether Guerrier did enough

to preserve this issue below, we assume (without deciding) that he

did, as his theory fails for another reason: it is nothing more

than speculation, pure and simple, given that none of the

suppression-hearing evidence suggests that he had to have known

about the failed drug test before the encounter. Actually, it is

worse than speculation, because his hypothesis is contradicted by

the record. The suppression-hearing evidence shows, for example,

that Guerrier learned about the failed test after Schneider and

Coco had left. It also shows that during the interview Guerrier

did not act like he expected officers to slap the cuffs on him any

second. And this record evidence trumps his surmise.

To wrap up, we conclude that, given the totality of the

circumstances, a reasonable person in Guerrier's shoes would not

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have believed that he was under arrest. Consequently, the judge's

ruling that no Miranda warnings were required at that time stands.

Sufficiency of the Trial Evidence

Guerrier contests the sufficiency of the evidence against

him, claiming that the government did not show that the

German/Guerrier conspiracy to rob Bennett affected interstate

commerce. But Guerrier must convince us that even after "crediting

the government's witnesses and drawing all reasonable inferences in

its favor," no levelheaded jury could have found him guilty.

United States v. Aranjo, 603 F.3d 112, 116 (1st Cir. 2010). Also,

that he can float "a plausible theory of innocence" does not

matter: if the evidence (direct and circumstantial), viewed most

favorably to the verdict, establishes the essential elements of the

crime beyond a reasonable doubt, it need not cancel out every

theory consistent with his innocence. Manor, 633 F.3d at 14; see

also United States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993)

(stressing that a court "need not believe that no verdict other

than a guilty verdict could sensibly be reached, but must only

satisfy itself that the guilty verdict finds support 'in a

plausible rendition of the record'") (quoting United States v.

Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)). A winning sufficiency

challenge is a rare thing indeed. See, e.g., Manor, 633 F.3d at 15

(citing United States v. Ortiz, 447 F.3d 28, 32 (1st Cir. 2006)).

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And after our de novo review, see, e.g., id. at 13, we conclude

that Guerrier's bid comes up short.

Proving an effect on interstate commerce is not too

difficult under controlling, long-existing precedent. See, e.g.,

United States v. Capozzi, 486 F.3d 711, 726 (1st Cir. 2007)

(calling the government's burden "'not onerous'") (quoting United

States v. DiGregorio, 605 F.2d 1184, 1191 (1st Cir. 1979)). Even

in a prosecution for disrupting illegal commerce, the government

need not show a substantial interference – a de minimis one will

do.4 See, e.g., United States v. DeCologero, 530 F.3d 36, 68 (1st

Cir. 2008). Certainty of a de minimis effect is not required

either. A "realistic probability" suffices. See United States v.

Butt, 955 F.2d 77, 80 n.2 (1st Cir. 1992). And "[e]ven potential

future effects" may be enough. Capozzi, 486 F.3d at 726. When it

comes down to it, "little is needed" to cross this "very low"

threshold. United States v. Murphy, 193 F.3d 1, 10 (1st Cir.

1999).

Drug dealing typically is an enterprise that affects

interstate commerce, and dealer-on-dealer robbery can satisfy the

affecting-commerce element of the Hobbs Act by (for example)

depleting the victim-dealer's business assets. See, e.g.,

DeCologero, 530 F.3d at 68; Capozzi, 486 F.3d at 726. Also, the

4
"De minimis" is legalese for "trifling" or "minimal."
Black's Law Dictionary 496 (9th ed. 2009).

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Act can cover "the use of force and threats to resolve a

contractual dispute among businessmen." United States v. Porcaro,

648 F.2d 753, 760 (1st Cir. 1981).

Hoping to convince us that his case does not come within

the Act's reach, Guerrier argues like this: Because German and

Bennett were members of the same drug-dealing business (the 371

Manchester Street crack house) that serviced the same clientele,

the robbery simply shifted assets (money and drugs) from one member

(Bennett) to another (German). And because the assets stayed

within the same business, the robbery did not deplete the

business's assets, meaning no rational jury could find that the

German/Guerrier conspiracy affected interstate commerce, even

minimally. Guerrier's theory is certainly interesting. But his

reading of the record does not square with our standard of review,

which is heavily stacked against him – again, we must peruse the

record from the prosecution's perspective, making all inferences

and credibility choices in its favor. See, e.g., United States v.

Polanco, 634 F.3d 39, 45 (1st Cir. 2011). And that makes all the

difference.

What the jury learned was that German had only one

partner in this drug-pushing venture – and Galeano was the guy, not

Bennett. The two (German and Galeano) split all profits 50/50.

Galeano knew Bennett from their time spent together in prison.

Having dealt drugs in New York, Bennett decided to deal in New

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Hampshire because he thought he could earn greater profits there

(crack is harder to come by in New Hampshire, apparently, so

Bennett could take crack from New York and charge a higher price to

customers in the Granite State). Bennett wanted to stay at 371

Manchester Street, the crack house that German and Galeano ran.

German said no at first. But Galeano explained that Bennett was

coming to New Hampshire to peddle drugs regardless, so German

decided to "make some money" off him. A deal was struck: Bennett

could live at the crack house and start selling his New York crack

to German and Galeano's New Hampshire customers (as a newcomer to

the scene, Bennett had no existing client base there), provided he

gave German and Bennett part of his profits and some of his supply.

Discussing the dynamics of their relationship, German called

Bennett simply one of his suppliers.

The record does not say what cut of his profits Bennett

had to hand over to German and Galeano. But a jury could infer

that he was still left with enough money to make the whole

arrangement worth his while – money that he could use to buy more

crack during his biweekly drug-buying treks to New York. And a

jury could also infer that Bennett would have headed to New York

soon had German and Guerrier not paid him that late-night visit to

avenge his breaching the agreement with German and Galeano – a

visit that left him with less cash to buy crack.

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 Viewing the record in the light most favorable to the

verdict, we think that a clear-sighted jury could find several

things. First, there was a German/Galeano drug-dealing business –

not a German/Bennett one. Second, Bennett ran his own New

Hampshire drug-dealing venture, fueled by a New York supply.

Third, he had contracted with German and Galeano so that he could

find a footing in the New Hampshire market. And fourth, he did not

live up to his commitments, which led to the robbery, which in turn

gummed up his drug-buying operation. From all this, a rational

jury could find that the German/Guerrier conspiracy had a realistic

probability of affecting interstate commerce to some minimal

degree, either because it worked to settle a business squabble

among persons engaged in interstate commerce, see, e.g., Porcaro,

648 F.2d at 760, or depleted the assets of Bennett's interstate

enterprise, see, e.g., DeCologero, 530 F.3d at 68; Capozzi, 486

F.3d at 726, or both. A reasonable jury, in short, had sufficient

bases to convict Guerrier under the Hobbs Act.

Ineffectiveness of Counsel

As a last stand, Guerrier challenges his conviction on

ineffective-assistance grounds, arguing that his trial counsel

botched his case by not moving to dismiss the indictment after the

government (supposedly) flouted his rights under the Interstate

Agreement on Detainers Act (the "IADA," for short). See 18 U.S.C.

App. 2 § 2. Prosecutors had him shipped from state custody (where

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he was following his parole-violation arrest) to federal custody

for arraignment on the federal indictment, and then back again, he

says. And that, he protests, infracted the IADA's anti-shuttling

provision, which "ensures that, once the receiving government

obtains custody of the prisoner, it will try him before returning

him to the sending government's stewardship." United States v.

Hunnewell, 891 F.2d 955, 958 (1st Cir. 1989).

Subpar performance and prejudice are the two essentials

for a winning ineffective-assistance claim. See, e.g., Strickland

v. Washington, 466 U.S. 668, 688, 691-92 (1984). A huge problem

for Guerrier, though, is that we typically do not review a claim

like that on direct appeal, requiring instead that a defendant

raise it (if at all) in a separate collateral proceeding. See,

e.g., United States v. Rivera-Gonzalez, 626 F.3d 639, 644 (1st Cir.

2010). An exception exists for the rare case where the record is

sufficiently developed and the important facts are undisputed.

See, e.g., United States v. Torres-Rosario, 447 F.3d 61, 64 (1st

Cir. 2006). This is not that case, however. A big unknown on this

record is how prosecutors got Guerrier to federal court. Did they

use a writ of habeas corpus ad prosequendum (the "writ," for

simplicity's sake) or an IADA detainer? We see a writ in the

record, not a detainer. But the government argues, persuasively,

that only a court on collateral review can give a definitive answer

on this critical question – critical because Guerrier needs an IADA

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detainer as a first step in showing an IADA violation. See United

States v. Casas, 425 F.3d 23, 67 (1st Cir. 2005). Guerrier,

notably, does not take issue with this argument. The government

also insists that the current record leaves a lot to the

imagination on other issues (e.g., whether Guerrier's lawyer's

alleged shortcomings caused prejudice) – uncertainties that can

only be resolved through the habeas process, it quickly adds. But

what we have said already about the writ/IADA-detainer mystery is

enough to reject Guerrier's ineffective-assistance claim as unripe.

See, e.g., Rivera-Gonzalez, 626 F.3d at 644-45; United States v.

Moran, 393 F.3d 1, 10-11 (1st Cir. 2004); Hunnewell, 891 F.2d at

956. If he wishes, he can pursue the matter by filing a petition

with the district court under 28 U.S.C. § 2255. See, e.g., Rivera-

Gonzalez, 626 F.3d at 645; Moran, 393 F.3d at 16; Hunnewell, 891

F.2d at 956 n.1. Obviously, we express no view on how a petition

like that might fare.

Conclusion

Our review over, we affirm Guerrier's conviction and

dismiss his ineffective-assistance claim without prejudice.

So ordered.

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