United States v. Genao

United States Court of Appeals
For the First Circuit

No. 00-2191

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE GENAO, a/k/a EVARISTO MARTINEZ,
a/k/a LUIS TORRES
SANDRIA, a/k/a LUIS SANABRIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Selya, Circuit Judge,

John R. Gibson,* Senior Circuit Judge,

and Lipez, Circuit Judge.

Martin I. Flax on brief for appellant.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Stephanie S. Browne, Assistant United States Attorneys, on
brief, for appellee.

*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 February 27, 2002

JOHN R. GIBSON, Senior Circuit Judge. Searching for drugs with a

warrant, Rhode Island police officers found only empty glassine paper

packets in Jose Genao’s second-floor apartment. Genao signed a consent-

to-search form that included the vacant apartment on the third floor.

When the police searched that apartment, they discovered 57 packets of

heroin and a gun. Genao now appeals from his ensuing convictions for

possessing heroin with intent to distribute it, in violation of 21

U.S.C. § 841(a)(1) (1994), and being a felon in possession of ammunition

and of a firearm, each in violation of 18 U.S.C. § 922(g)(1) (1994).1

Genao first disputes the district court’s2 denial of his motion to

suppress the confessions and the physical evidence seized from the

apartments. He claims that the affidavit the officers used to obtain

the search warrant failed to show probable cause; that the physical

evidence seized from the third-floor apartment was taken without his

1The jury that convicted Genao of these counts acquitted
him of a count of possessing a firearm during a drug trafficking
crime. The district court also dismissed a count against Genao
for conspiracy to distribute heroin and to possess heroin with
intent to distribute.
2The Hon. Mary M. Lisi, United States District Judge for
the District of Rhode Island, ruled on Genao's pretrial motions.
The Hon. Ronald R. Lagueux, United States District Judge for the
District of Rhode Island, presided over his trial.

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knowing and voluntary consent to the search; and that his confessions

were obtained in violation of the Fifth Amendment. Secondly, Genao

argues that the district court abused its discretion when it denied his

pro se motion to replace his appointed counsel without inquiring

sufficiently into Genao’s grounds for dissatisfaction. We affirm the

convictions.

The investigation that led to the search began when police

received a tip from a confidential informant that Migdalia Ortiz

(Genao’s wife) was selling heroin out of a second-floor apartment at 14

Benedict Street in Providence. The police learned that Migdalia Ortiz

had previously been arrested for drug offenses. The telephone number

at the apartment was assigned to "Jose Ortiz." The police arranged for

the informant to make a controlled purchase of heroin at the Ortiz

apartment. They obeyed several common formalities for such a procedure:

searching the informant to make sure that he had no contraband prior to

the purchase, watching him enter the building and leave it, then

inspecting the substance turned over by the informant after leaving the

apartment. In a field test, the substance tested positive for heroin.

The police prepared a search warrant affidavit reciting

essentially the above facts. They obtained a warrant to search the

second-floor apartment and the couple for heroin or drug paraphernalia.

A team of eight to ten officers, accompanied by a police dog,

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executed the search. In the second-floor apartment, the police found

a brown box with hundreds of empty glassine packages of a sort commonly

used to store drugs. The officers also noticed an open door leading to

a third-floor apartment. When asked whether the third-floor apartment

was occupied, Genao replied that it was vacant, but that he had a key

to it and was functioning as the landlord. This conversation was

conducted in English. Genao produced the key and demonstrated it to the

officers. At the officers’ request, Genao and Ortiz each signed a

consent form written in English and Spanish (apparently Genao’s first

language) that authorized the police to enter the third-floor apartment,

the second-floor apartment, and the basement.

In the upstairs apartment, the police seized 57 glassine

packets of heroin, a scale, coffee grinders, a sifter, a scoop,

packaging material, and two handguns with ammunition. The heroin was

in a black bag, concealed from view atop a cabinet in the third-floor

kitchen. The handguns and ammunition were hidden in a compartment built

into one of the kitchen walls. There was no furniture or food in the

upstairs apartment, nor any other signs that it was occupied.

After the items were seized, Detective Kevin O'Brien returned

to the second floor. O’Brien showed Genao the seized items and said,

"We've got a problem here." Before O’Brien could say anything else,

Genao stated in English: "Everything’s mine. I don't want my wife to

get in trouble." O'Brien interrupted Genao and told him not to say

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anything until he was advised of his rights. After this, O’Brien gave

Genao his Miranda rights in English. Genao stated that he understood

them. Genao then repeated his statement that everything was his and

that he did not want to get his wife in trouble.

I.

Genao argues that the affidavit underpinning the warrant was

too weak to authorize the police to enter and search the second-floor

apartment. We review de novo the district court’s holding that probable

cause existed for the search. United States v. Sawyer, 144 F.3d 191,

193 (1st Cir. 1998). At the same time, we review deferentially the

issuing court’s assessment of the facts and inferences underpinning the

warrant. Id.3

Probable cause exists where the facts recited in the

affidavit establish "'a fair probability that contraband or evidence of

a crime will be found in a particular place.'" United States v.

Baldyga, 233 F.3d 674, 683 (1st Cir. 2000), cert. denied, 122 S. Ct. 164

(2001) (quoting United States v. Khounsavanh, 113 F.3d 279, 283 (1st

Cir. 1997)). While we have declined to hold that a "controlled buy" of

the type carried out by the officers here will always establish probable

3A warrant-backed search may also be upheld on the ground that
the officers were relying "reasonably ... on a warrant issued by a
detached and neutral magistrate." United States v. Leon, 468 U.S. 897,
913 (1984). The issue of reasonable reliance is moot here in light of
our holding that the facts recited in the search warrant affidavit
established probable cause.

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cause to search the location where the informant was sent to buy drugs,

see Khounsavanh, 113 F.3d at 285, a properly conducted controlled buy

is formidable evidence to support a search.

Our prior decisions in Khounsavanh and United States v.

Garcia, 983 F.2d 1160 (1st Cir. 1993), are instructive. In each of

those cases, as in this one, police received a tip from an informant

that drugs were being sold in one of the apartments in a three-family

or three-story dwelling. They then arranged for the informant to make

a controlled buy at that location. After searching the informant for

drugs prior to the buy, and finding none, the police watched him enter

and leave the building (though not the particular apartment in

question). The returned informant stated that he had purchased drugs

from one of the parties mentioned in his earlier tip. Finally, the

police recovered from the informant illegal drugs of the same type

described in the tip. See Khounsavanh, 113 F.3d at 285-87; Garcia, 983

F.2d at 1166-67. In both cases, we held that the buy gave enough

corroboration of the assertion of illegal activity in the informant’s

tip to create probable cause, and we upheld both searches. See

Khounsavanh, 113 F.3d at 285-86; Garcia, 983 F.2d at 1167.

Here, for similar reasons, we conclude that the totality of

the circumstances reported in the affidavit was sufficient to establish

probable cause to search Genao’s second-floor apartment. The controlled

heroin buy here was not perfectly monitored, nor (to judge from the

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affidavit) did the informant buyer verify the name or specific location

of the seller after emerging from the building. The buy did, however,

yield a recovery of heroin consistent with the informant’s original tip,

recorded in the affidavit, that Migdalia Ortiz and her husband, "name

unknown," were selling heroin in the second-floor apartment. Moreover,

as the affidavit notes, phone company records showed a listing for Jose

Ortiz at 14 Benedict Street, second floor. In view of these facts, the

buy gave sufficient corroboration of the original tip to justify the

search.

II.

Genao next argues that even if the police were lawfully

present on the second floor, he did not consent voluntarily to the

search of the third floor, rendering the heroin and gun seized there

inadmissible.

This argument has been waived. Genao raised no voluntariness

challenge to the third-floor search in the district court. See Fed. R.

Crim. P. 12(f); United States v. Santos Batista, 239 F.3d 16, 19-20 (1st

Cir.), cert. denied, 122 S. Ct. 117 (2001) (pointing out that arguments

to suppress evidence as illegally seized, if not raised at or before the

suppression hearing, are treated as waived unless cause and prejudice

can be shown; holding defendant’s argument waived for this reason).

More than that, his counsel, when questioned on this issue by the

district court, expressly conceded that Genao was not making such a

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challenge. In light of this express concession to the court below, the

argument is waived.4

Apart from the waiver, whether the government has established

the voluntariness of consent to a search turns on the totality of the

circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

Genao executed a consent-to-search form that gave him, in both English

and Spanish, a thorough set of warnings about his rights and the effects

of a search. In addition, Genao’s volunteering the fact that he had a

key to the third-floor apartment and showing the police how the key

worked both indicate willing cooperation with the police. See United

States v. Zapata, 18 F.3d 971, 977 (1st Cir. 1994) (noting that

defendant’s act of freely handing over car keys to group of four

officers was "evidence of consent inferable from conduct").

III.

Genao also argues that both of his confessions should have

been suppressed as the products of constitutional violations. He claims

that his first confession was coerced, which implicates the due process

4See United States v. Clarke, 227 F.3d 874, 881 (7th Cir. 2000),
cert. denied, 531 U.S. 1182 (2001) (holding that when defendant
affirmatively waived the argument that bullets and scale seized from
his girlfriend’s house were taken in violation of Fourth Amendment, by
stating to the court that his motion to suppress did not encompass
those items, the argument was waived rather than forfeited and
therefore plain error review did not apply); United States v. Reveles,
190 F.3d 678, 683 (5th Cir. 1999) (holding that a constitutional right
"explicitly waived ... at trial" could not be a basis for reversal on
appeal).

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clauses of the Fifth and Fourteenth Amendments. See United States v.

Vega-Figueroa, 234 F.3d 744, 749 (1st Cir. 2000). He also claims that

it resulted from custodial interrogation not preceded by appropriate

warnings, which implicates the rule announced in Miranda v. Arizona, 384

U.S. 436 (1966). Either argument, if valid, would keep out the first

confession. Establishing that the first confession was coerced would

improve Genao’s chances of keeping out his second confession, which

followed Miranda warnings. See Oregon v. Elstad, 470 U.S. 298, 310-14

(1985).

Genao’s first confession was not produced by coercion.

"[O]nly confessions procured by coercive official tactics should be

excluded as involuntary." United States v. Byram, 145 F.3d 405, 407

(1st Cir. 1998) (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)).

The record establishes that the police did not apply undue or unusual

pressure to Genao, use coercive tactics, or threaten him with violence

or retaliation if he did not confess. See id. at 408. It is true that

Genao was in custody when he confessed to Detective O’Brien, and a

sizable team of police officers (plus the dog) was present in the

apartment with him at the same time. But these facts without more do

not add up to "police overreaching," as required for a holding of

coercion. Connelly, 479 U.S. at 170. We conclude that Genao’s first

statement was not coerced.

Despite the lack of actual coercion, it is a constitutional

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rule that a confession resulting from custodial interrogation not

preceded by appropriate warnings is normally inadmissible against the

speaker. Dickerson v. United States, 530 U.S. 428, 431-32, 444 (2000).

Genao argues that he was in custody when the police searched the second-

and third-floor apartments, and that Detective O’Brien’s first words to

him -- "We’ve got a problem here" -- amounted to interrogation. If

true, this would require exclusion of the first confession.

The first confession, however, was not the product of a

Miranda violation, for Detective O’Brien’s brief remark to Genao did not

constitute interrogation. For Miranda purposes, interrogation is

"express questioning or its functional equivalent." Rhode Island v.

Innis, 446 U.S. 291, 300-01 (1980). Interrogation occurs only when

police conduct is "reasonably likely to elicit an incriminating response

from the suspect." Id. at 301. Moreover, "words or actions . . .

normally attendant to arrest and custody" do not constitute

interrogation. Id. (punctuation omitted).

In light of the circumstances here, O’Brien’s remark to Genao

was not the functional equivalent of questioning, nor was it reasonably

likely to elicit an incriminating response. The district court found

that Genao confessed before O’Brien could begin reading Genao his

Miranda rights. This finding was not clearly erroneous in light of the

record before us. In that context, O’Brien’s words are reasonably

viewed as a preliminary comment intended to get Genao’s attention before

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reading him his rights and explaining that he was under arrest. Cf.

United States v. Vazquez, 857 F.2d 857, 863 (1st Cir. 1988) ("Although

a purpose to elicit information is not dispositive, our consideration

of the actual impact of the technique cannot help but be influenced by

whether the police believed that it would produce a response from the

suspect."). In addition, the remark was brief, was not worded in a

particularly confrontational manner, and did not directly accuse Genao

of any crime or seek to inflame his conscience. Cf. United States v.

Allen, 247 F.3d 741, 764-65 (8th Cir. 2001) (holding that no

interrogation occurred where police told suspect, who had requested but

not yet received counsel, of the unfavorable results of the lineup in

which he agreed to take part without counsel being present; police

remark was "a simple description of the status of the . . .

investigation," not interrogation); United States v. Moreno-Flores, 33

F.3d 1164, 1168-70 (9th Cir. 1994) (concluding no interrogation where

police officer told defendant, who had invoked his right to silence,

that agents had seized 600 pounds of cocaine and defendant was in

"serious trouble").5

5
A similar analysis applies to the officers’ asking Genao
whether the third floor was occupied, which prompted Genao to
state that it was vacant, and that he was acting as the
landlord. We note that Genao raised no Miranda challenge to the
admission of these statements at trial, although he did not
expressly waive such a challenge. Assuming plain error review
applies, admitting the statements was not plain error. The
officers’ question was "much more of an informational inquiry
incident to the arrest, as opposed to a query designed to induce

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 Genao’s main argument for excluding his second confession,

which came after Miranda warnings, is that it was tainted by the

constitutional defects that he claims marked the first one. However,

this argument was waived below. Genao’s counsel specifically told the

district court that Genao did not challenge the second confession’s

admissibility. See note 4 supra (discussing express waiver). Even if

this waiver did not preclude review, our earlier conclusion that Genao’s

first confession was voluntary would all but foreclose his argument for

excluding the second one. "A subsequent administration of

Miranda warnings to a suspect who has given a voluntary but unwarned

statement ordinarily ... suffice[s] to remove the conditions that

precluded admission of the earlier statement." United States v.

Esquilin, 208 F.3d 315, 319 (1st Cir. 2000) (quoting Elstad, 470 U.S.

at 314). Our further conclusion that Genao’s first confession was not

even the result of a Miranda violation puts the matter beyond doubt.

Both confessions were properly admitted.

IV.

Genao’s final argument is that the district court committed

reversible error by denying his motion for new counsel without making

an inculpatory remark." United States v. Conley, 156 F.3d 78,
84 (1st Cir. 1998) (holding that no interrogation occurred when
a postal inspector asked an un-Mirandized defendant whether cash
found in a search of the defendant’s person was the defendant’s
own).

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a sufficient inquiry into the nature and grounds of Genao’s

dissatisfaction. Genao disclosed his dissatisfaction in a pro se

motion for dismissal of his appointed counsel, accompanied by his

affidavit. Genao’s motion stated that he sought to dismiss his

appointed federal counsel, a Mr. Lepizzera, on the ground of

"ineffective . . . assistance." In the affidavit, Genao complained

chiefly that Lepizzera had wrongly encouraged him to accept a guilty

plea in a related state court proceeding in which Genao was

represented by a different appointed attorney. He also complained

that "since I’ve been indicted, I haven’t even seen my indictment or

any legal papers." The motion was dated March 9, 2000. At that

time, Genao’s jury was scheduled to be empaneled on March 21, 2000.

The district court began its hearing on the motion by

asking Genao to explain his problems with counsel "in [his] own

words," then changed its mind and instead asked Genao to affirm that

the reasons for his dissatisfaction were those given in his motion.

Genao said yes. Next, Genao answered questions that the district

court posed about his dissatisfaction with his attorney’s advice to

plead guilty in the state proceeding. The court also questioned

Lepizzera about Genao’s concerns with the state court guilty plea.

Genao then spoke spontaneously about his belief that

counsel had failed to contact an exculpatory witness who, Genao

claimed, planted the heroin that the police discovered on the third

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floor, and another witness who allegedly purchased some of the heroin

from Genao’s wife. The district court cut Genao off, saying: "You

are going into areas that are not included in your motion." The

court did not ask appointed counsel any questions about his handling

of Genao’s concerns about exculpatory witnesses. It denied the

motion to substitute counsel without permitting Genao to speak again.

At trial, Lepizzera did not call witnesses, but he did

argue that Genao’s conduct showed that he did not know there were any

drugs on the third floor. His cross-examination of Detective

O’Brien, the government’s lead witness, laid a foundation for this

argument.

We review the district court’s denial of a motion to

substitute counsel for abuse of discretion. United States v.

Richardson, 894 F.2d 492, 496 (1st Cir. 1990). The relevant inquiry

is described in United States v. Allen, 789 F.2d 90 (1st Cir. 1986):

Where the accused voices objections to appointed counsel, the
trial court should inquire into the reasons for the
dissatisfaction . . .. In evaluating whether a trial court’s
denial of [the] motion . . . constituted an abuse of discretion
. . . the appellate court should consider several factors,
including the timeliness of the motion, the adequacy of the
court’s inquiry into the defendant’s complaint, and whether the
conflict between the defendant and his counsel was so great that
it resulted in a total lack of communication preventing an
adequate defense.

Id. at 92, quoted in United States v. Prochilo, 187 F.3d 221, 225

(1st Cir. 1999).

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 Genao’s argument is based on the second Allen factor: that

because the district court prevented him from fully explaining one of

his grounds for dissatisfaction, its inquiry was so inadequate as to

amount to an abuse of discretion. In Prochilo, we held that the

district court’s complete failure to conduct any inquiry on the

defendant’s motion to substitute paid counsel for his appointed

counsel was an abuse of discretion that required reversal of the

conviction. Id. at 223, 229. Here, by contrast, the district court

did hold a hearing, and discussed the motion with Genao and

Lepizzera. The record makes clear that the court’s inquiry into

Genao’s concern about his state court guilty plea was adequate.

The district court’s handling of Genao’s complaints about

Lepizzera’s trial preparation presents a closer question. The court

apparently rejected Genao’s claim that Lepizzera failed to

investigate material witnesses on the ground that the claim was "not

included in [Genao’s] motion." Genao’s motion alleged that he was

receiving ineffective assistance of counsel, and his affidavit

indicated that Lepizzera was not keeping in contact with him about

his case. This claim might be read as raising an issue of attorney

diligence. This court has emphasized, when dealing with motions for

a continuance in order to substitute counsel, that "specificity in a

motion of this sort cannot be required." Prochilo, 187 F.3d at 226.

Cf. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (courts

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should read pro se complaints less strictly than lawyer-drafted

pleadings); Prou v. United States, 199 F.3d 37, 42 (1st Cir. 1999)

(applying more tolerant standard of particularity to pro se motion

for relief under 28 U.S.C. § 2255).

We must also consider "whether the conflict between the

defendant and his counsel was so great that it resulted in a total

lack of communication preventing an adequate defense." Allen, 789

F.2d at 92. Here, the conflicts alleged by Genao, in light of the

record as a whole, do not establish a breakdown so severe that the

district court’s refusal to intervene was an abuse of discretion.

The court rightly concluded that Genao’s concerns about the state

court guilty plea were not meritorious. Lepizzera was not even

Genao’s counsel for the state court proceeding. Moreover, the mere

fact that a defense attorney and his client disagree about the

advisability of a plea does not justify appointing new counsel. See

id. at 93. The district court found that Genao was informed of the

consequences of the state court plea when he ultimately decided to

accept it, and this finding was not clearly erroneous.

Similar reasoning applies to Lepizzera’s failure to present

Genao’s defense theory in exactly the way Genao wished, which would

have involved an alleged exculpatory witness or witnesses. Counsel

has considerable discretion over the choice of trial tactics, and a

disagreement between client and counsel on how best to structure a

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defense does not normally establish the sort of conflict that on its

own deprives the defendant of an adequate defense. See Strickland v.

Washington, 466 U.S. 668, 688-691 (1984); United States v. Anderson,

189 F.3d 1201, 1211 (10th Cir. 1999); United States v. Leggett, 81

F.3d 220, 227 (D.C. Cir. 1996). We are also influenced by

the fact that the district court is ill-positioned to evaluate, in a

pretrial hearing, ineffective assistance claims based on an

attorney’s failure to pursue a particular type of defense. It is

hard to gauge the appropriateness of counsel’s actions or omissions

without knowing how the trial will actually play out. Indeed, even

after a trial is completed, we do not entertain ineffective

assistance claims on direct appeal absent an evidentiary record that

allows us to evaluate the fact-specific allegations. See, e.g.,

United States v. Woods, 210 F.3d 70, 74 (1st Cir. 2000). The

preferable vehicle for such claims is a collateral proceeding under

28 U.S.C. § 2255, in which the parties and the district court can

address factual matters relevant to the issue. See United States v.

Jadusingh, 12 F.3d 1162, 1169-1170 (1st Cir. 1994). Genao, of

course, remains free to pursue a Section 2255 petition directly

addressing the issue.

In light of the record before us, however, we are persuaded

that the district court’s denial of Genao’s motion did not rise to

the level of an abuse of discretion meriting reversal. Since his

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challenges to the search and to the admissibility of his confessions

are also rejected, we affirm his convictions.

AFFIRMED.

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