United States v. Calderon

United States Court of Appeals
For the First Circuit

No. 95-1707

UNITED STATES OF AMERICA,

Appellee,

v.

JAIME CALDERON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

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

Before

Stahl, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Lynch, Circuit Judge.

Merin Chamberlain for appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M.

Gagnon, United States Attorney, was on brief, for the United States.

February 27, 1996

LYNCH, Circuit Judge. Having been convicted by a
LYNCH, Circuit Judge.

jury of carjacking and kidnapping, Jaime Calderon was

sentenced to 30 years of imprisonment, and five years of

supervised release thereafter. He now challenges the

verdict, saying that certain evidence should have been

suppressed and he should have been given a hearing on the

motion to suppress, that the superseding indictment was

invalid, that there was insufficient evidence to convict, and

that the jury's conviction of him on two counts was

impermissibly inconsistent with its acquittal of him on two

other counts. There being more than ample evidence to

convict and none of the asserted errors having been

committed, we affirm. Indeed, this is a case in which the

police search was backed by more than the usual, and the

careful efforts by the police to have both belt and

suspenders to support the search marks more, rather than

less, concern for adherence to the procedural protections

afforded defendants.

The Crime

On the evidence, the jury was entitled to find the

following. On August 31, 1994, Calderon heard that two young

men were selling stereo speakers out of a van in his

neighborhood in Nashua, New Hampshire. Emboldened by access

to newly stolen guns, Calderon decided to take the van and

the speakers. Calderon, age 33, recruited three teenagers,

including his nephew Jose Hernandez, to help him. When

-3-
3

Hernandez originally balked, his uncle excoriated him and

called him a "chicken." The other two recruits, Angel Rivera

and Julio Sanchez, approached the two young stereo salesmen

and asked if they would take them in the van to a nearby

place where they could make a purchase outside of the

presence of police officers who might be looking for them.

Once inside the van, Rivera and Sanchez used a gun and

chokeholds to force the two salesmen to the back of the van,

where they were made to lie, face down. The carjackers

struck one on the head with a gun, causing profuse bleeding,

and told the two men that if they ever went to the police,

they would be hunted down at their homes and killed.

Rivera and Sanchez picked up Calderon in the van,

at his apartment, where he assumed the role of driver.

Hernandez joined the group as the van left the neighborhood.

Because the salesmen were face down, they could not identify

Calderon, but were aware of his presence in the van.

Calderon, who was in charge, gave instructions that "if the

kids get smart or something, . . . smack them around a little

just to calm them down." The van was driven to

Massachusetts. In Lowell, Calderon, a heroin addict, bought

heroin and unloaded some of the speakers. The two "kids"

were held with their faces down for three hours and then

dumped into a wooded ditch in Billerica after one of them was

kicked in the head.

-4-
4

Calderon's defense at trial was that he simply

accepted a ride to Lowell, where he knew he could buy heroin,

and had no part in the carjacking or kidnapping. A search of

the apartment of Calderon's girlfriend, however, turned up

both the stolen speakers and Calderon.

In the interim, a disquieted Hernandez turned

himself in to the Nashua police and voluntarily cooperated.

The Search

Based on information from a confidential informant

that at least one pair of the stolen speakers was at the

apartment of Carmen Delgado, Calderon's girlfriend, the

police went to Delgado's apartment at 11 p.m. on September 6,

1994. At that time the police had an outstanding warrant for

Calderon's arrest for a failure to appear on a motor vehicle

violation and Calderon was a prime suspect in the kidnapping

and carjacking. The officers had reason to believe that

Calderon was living at the address.

The police knocked and, when Delgado answered the

door, they asked for permission to search. An officer also

read from a consent form. Delgado gave consent. The

officers then asked her to sign the consent form, which she

did. Two of the stolen speakers were in plain sight. In

addition, there was a man in the living room. The man gave a

name, not the name "Jaime Calderon," and four different dates

of birth. An officer stepped outside to look at a photograph

-5-
5

of Calderon, realized the man was Calderon, and went back in

and arrested him. Not knowing who or what was in the rest of

the apartment, the police searched the remainder. They found

two other speakers, of the type stolen, in a bedroom closet.

A few hours later, the officers obtained a warrant to make a

detailed search of the apartment for weapons and speakers.

Delgado gave the police inconsistent versions of her story to

the effect that the speakers came to her apartment

innocently.

Motion to Suppress

Calderon argues that the district court erred in

denying his motion to suppress evidence without an

evidentiary hearing and that on the merits the motion should

have been granted. The decision to hold an evidentiary

hearing is committed to the discretion of the district court

and our review is for abuse of that discretion. See United

States v. Lewis, 40 F.3d 1325, 1332 (1st Cir. 1994).

Evidentiary hearings on motions to suppress are

required only where a defendant makes a sufficient showing

that the evidence seized was the product of a warrantless

search that does not fall within any exception to the warrant

requirement. Id. The burden is on the defendant to allege

facts, "sufficiently definite, specific, detailed, and

nonconjectural, to enable the court to conclude that a

-6-
6

substantial claim is presented." Id. (internal quotations

omitted).

Calderon argues that the motion to suppress should

have been granted because Delgado gave no valid consent to

the search, and that it was error for the district court not

to take evidence and grant the motion. Leaving aside the

question of whether Delgado's consent was necessary under the

circumstances,1 we analyze the issue as Calderon has framed

it. Calderon posits that because Delgado primarily speaks

Spanish, she could not have understood what the English-

speaking police were saying in their late night, disorienting

appearance at her apartment. But this is a supposition to

which Calderon gave no flesh when he had the opportunity on

the motion to suppress. Calderon filed no affidavits in

support of the motion, not even from Delgado, on whose state

of mind he now so heavily relies.2 In contrast, the

prosecution, in opposing the motion, provided copies of the

1. For example, the police believed Calderon to be living
with Delgado and had an arrest warrant for Calderon.
"Generally, the police do not need a search warrant to enter
a suspect's home when they have an arrest warrant for the
suspect." United States v. Lauter, 57 F.3d 212, 214 (2d Cir.

1995); see also Payton v. New York, 445 U.S. 573, 603 (1980).

2. On appeal, Calderon asserts for the first time that the
police officers had already crossed the threshold of the
apartment when they asked Delgado for her consent, and that
this was an additional factor showing coercion. The
argument, not having been made before the district court, is
waived. See United States v. Carvell, 74 F.3d 8, , No. 95-

1606, slip op. at 15 (1st Cir. Jan. 19, 1996).

-7-
7

police reports which told a different story. Delgado gave

the police varying versions of how the speakers came to be in

the apartment. There was no indication that she did not

comprehend the explanation of the consent form or voluntarily

execute it -- indeed, all indications were to the contrary.

Calderon presented no evidence at all that Delgado's will was

"'overborne'" or that she suffered a "'critically impaired

capacity for self-determination.'" United States v.

Wilkinson, 926 F.2d 22, 25 (1st Cir.) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973)), cert. denied, 501 U.S.

1211 (1991).

The district court explained its denial of

Calderon's motion to suppress without an evidentiary hearing:

Defendant vaguely claims that Ms.
Delgado's consent was coerced or was
otherwise ineffective, but he offers no
affidavit or statement from Ms. Delgado
to that effect, describes no
circumstances supporting his assertion,
and makes no offer of proof relative to
any other facts that might support his
assertion.

There is no basis to disturb the district court's decision.

Constructive Amendment

Calderon's second argument is that there was a

"constructive amendment" to his indictment, in violation of

his Fifth and Sixth Amendment rights. "The [F]ifth

[A]mendment requires that a defendant be tried only on a

charge made by the grand jury," and the Sixth Amendment

-8-
8

"requires that the defendant be informed of the nature and

cause of the accusation." United States v. Kelly, 722 F.2d

873, 876 (1st Cir. 1983), cert. denied, 465 U.S. 1070 (1984).

When Calderon was first indicted on September 14, 1994, the

kidnapping charge omitted the phrase "for ransom or reward or

otherwise," a necessary element of the offense. See 18

U.S.C. 1201. Subsequently, the missing phrase was added,

and that superseding indictment was presented to a grand jury

on October 26, 1994, which returned it. And that fact

disposes of Calderon's claim. Cf. United States v. Dunn, 758

F.2d 30, 35 (1st Cir. 1985) (constructive amendment occurs

where "the charging terms of the indictment are altered,

either literally or in effect, by prosecution or court after

the grand jury has last passed on them" (emphasis added;

internal quotations omitted)). A defendant cannot complain

of an improper constructive amendment if the indictment is

actually amended by resubmission to the grand jury.3 Cf.

United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert.

denied, 488 U.S. 852 (1988).

Sufficiency of Evidence

Calderon argues that there was insufficient

evidence for the jury to have found him guilty, and so the

3. Since Calderon's argument that it was error for the
district court to have denied his motion for the transcripts
of the second grand jury sitting is premised on there having
been an improper constructive amendment, we do not address
it.

-9-
9

district court erred in not granting his motion for acquittal

under Fed. R. Crim. P. 29. "In reviewing a sufficiency of

the evidence claim we look at the evidence in the light most

favorable to the verdict." United States v. Cruz-Kuilan,

F.3d , , Nos. 94-2217 & 95-1390, slip op. at 6 (1st Cir.

Feb. 5, 1996).

The thrust of Calderon's challenge is that the jury

should not have believed the version of the story, contrary

to his, recounted by two of his accomplices and a

confidential informant whose son was in prison. The argument

fails. It was well within the jury's province for it to

choose to believe the testimony of Calderon's accomplices --

in the face of his cross-examination of their characters and

motives -- and to disbelieve Calderon's version of the story.

See id. "Credibility determinations are uniquely within the

jury's province, and we defer to the jury's verdict if the

evidence can support varying inferences." Id. (citations

omitted).

Alleged Verdict Inconsistency

Calderon also argues that his carjacking conviction

cannot stand because he was acquitted of the firearms

possession charges and firearm possession was an essential

element of the carjacking offense. In criminal law "the

Supreme Court has made it clear that verdict inconsistency in

itself is not a sufficient basis for vacating a conviction."

-10-
10

United States v. Lopez, 944 F.2d 33, 41 (1st Cir. 1991)

(citing United States v. Powell, 469 U.S. 57 (1984), and Dunn

v. United States, 284 U.S. 390 (1932)).

This Court explained in Lopez:

Verdict inconsistency does not indicate
that the government necessarily failed to
prove an essential element of its case
beyond a reasonable doubt. . . . We
cannot necessarily assume[] that the
acquittal . . . was proper -- the one the
jury really meant. It is equally
possible that the jury, convinced of
guilt, properly reached its conclusion on
[one] offense, and then through mistake,
compromise, or lenity, arrived at an
inconsistent conclusion on the [other]
offense. As long as the trial and
appellate courts are convinced on
independent review that there was
sufficient evidence to sustain a rational
verdict of guilt beyond a reasonable
doubt, the defendant is properly
protected against any risk of injustice
resulting from jury irrationality.

Id. (citations and internal quotations omitted). Because

Calderon's conviction was supported by sufficient evidence,

the challenge based on alleged verdict inconsistency fails.

Affirmed.

-11-
11