UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2317
UNITED STATES,
Appellee,
v.
YVES LEREBOURS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Torruella, Chief Judge,
Cummings* and Cyr, Circuit Judges.
Bjorn Lange, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
Jean B. Weld, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief for
appellee.
June 25, 1996
* Of the Seventh Circuit, sitting by designation.
CUMMINGS, Circuit Judge. Defendant Yves Lerebours was
CUMMINGS, Circuit Judge.
convicted for various drug-related offenses. He raises three
issues in this appeal: whether the district court properly
refused to dismiss based upon a Commerce Clause challenge to the
criminal statute; whether the district court properly refused to
enter a judgment of acquittal for insufficient evidence; and
whether the defendant's sentence was appropriate under the
Sentencing Guidelines. We affirm the district court's
conclusions.
In 1994 and 1995 the police department of Manchester,
New Hampshire, investigated the sale of crack cocaine and other
narcotics in that city. During September 1994 the police focused
on drug activities at 309 Cedar Street in Manchester. In that
month a police department detective knocked at the door of an
apartment on the third floor of that address. A woman directed
him to the driveway at the rear of 315 Cedar Street. At that
place he spoke to a Hispanic male whom he later identified as
defendant and said "I want three." Defendant then entered the
rear door and several minutes later handed three small plastic
baggies to a juvenile who asked the detective to accompany him.
The detective purchased three baggies from the boy for $60. The
contents consisted of .39 grams of crack cocaine.
On September 19 the same detective returned to 309
Cedar Street. Defendant was inside an apartment there and the
detective again asked for "three." The defendant instructed him
to wait downstairs in the alley where the detective bought three
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baggies from defendant for $60. The contents again consisted of
.39 grams of crack cocaine. Defendant told the detective that
the next time he came for "crack," he should go to the driveway
in back of 315 Cedar Street, ask for Tony, and say that Oshee
sent him. Defendant later testified that his nickname was Yoshi.
In January 1995 the same detective identified a photograph of
defendant as the individual selling him crack cocaine in the
prior September. He also identified defendant in court. He
testified that he was trained to remember faces of suspects.
In March 1995 another detective of the Manchester
police department was investigating drug sales at 249 Cedar
Street in Manchester. On March 7 this detective purchased five
rocks of crack cocaine for $100 from Henry Favreau at 290 Auburn
Street. On the following day Favreau took him to 290 Auburn
Street where the detective was told "they were in there cutting
it up," and the detective then made a second purchase. On March
14 he made his third purchase of five rocks from Favreau at 290
Auburn Street.
On March 15, after obtaining a search warrant, several
police officers executed a search at 290 Auburn Street. One of
the detectives sketched the apartment for his police report and
identified the rooms searched as including a kitchen, a northwest
bedroom and a northeast bedroom. A brown vinyl box was
discovered above the ceiling tiles in the kitchen that contained
baggies, tissue, a cup, a 13-inch-long Ginsu knife, a six-inch-
long test tube, and scissors. The knife, scissors and test tube
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contained cocaine residue. One of the detectives identified
defendant as being present at 290 Auburn Street when the officers
arrived to execute the search warrant.
Still another detective, accompanied by his drug-
detection dog, searched the northwest bedroom. The dog began to
bite and scratch on one of the two mattresses. On lifting the
mattress, the detective observed a number of rocks consisting of
1.88 grams of crack cocaine. During the search defendant
informed a police sergeant that the northwest bedroom was shared
by him and his girlfriend.
In April 1995 defendant was indicted for offenses
involving cocaine and cocaine base. The indictment was in six
counts. The first count charged a conspiracy to distribute such
drugs in 1994 and 1995 in violation of 21 U.S.C. 846. Counts
two and four charged their distribution in September 1994, and
counts three, five and six charged possession of such drugs in
September 1994 and March 1995. Finally, counts two through six
alleged violations of 21 U.S.C. 841(a)(1) providing that it is
unlawful "to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled
substance." Counts three and five were dismissed by the
government.
After the government presented its case, defendant
sought acquittal on all counts pursuant to Federal Rule of
Criminal Procedure 29. He also asked that the case be dismissed
based upon United States v. L pez, U.S. , 115 S. Ct. 1624
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(1995). The district judge commented that he would be surprised
"if the federal drug laws could ever be brought within the scope
of those category of laws that cannot withstand scrutiny under
the commerce clause test." Before denying dismissal, he added:
Cocaine trafficking is a huge interstate
economic enterprise. Congress could well
decide to regulate that enterprise by
prohibiting the distribution of cocaine
or the possession of cocaine with intent
to distribute. The crime necessarily
implicates interstate and foreign
commerce since cocaine cannot be
manufactured and sold solely within any
one state's boundaries. So for that
reason I'm going to deny your L pez
motion.
Elizabeth Rivera, defendant's fianc e, and her mother
Margarita then offered alibi testimony, obviously disbelieved by
the jury, concerning events on September 16, 1994, and in March
1995. Defendant again moved for acquittal under Rule 29 of the
Federal Rules of Criminal Procedure and for dismissal under
United States v. L pez, but both motions were denied. After the
three-day jury trial defendant was found guilty on counts one and
four and not guilty on counts two and six.
Both sides filed sentencing memoranda. Defendant
requested that he be held accountable for only the .39 grams of
cocaine base that was the subject of count four. Since he was
acquitted under counts two and six, he argued that he should not
be held accountable for the drugs distributed on September 16,
1994, and March 15, 1995. In turn, the government requested
accountability for a total drug quantity of 4.15 grams of cocaine
base. Based upon that amount, the revised presentence
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investigation report computed a base offense level of 24 for
defendant.
The district judge decided that the following amounts
were attributable to defendant: .37 grams on September 16, 1994;
.39 grams on September 19, 1994; and 1.88 grams on March 15,
1995, or a total of 2.64 grams. The judge explained his rulings
as follows:
. . . just because the jury found him not
guilty, [sic] that March event doesn't
mean that I have to find that he [sic]
hasn't established by a preponderance of
the evidence that that cocaine is his.
. . .
I have no difficulty in finding that the
.37 [sic] grams on 9/16, the .39 grams on
9/19 that was the subject of the
conviction, and the .188 [sic] grams that
was the subject of the acquittal in March
are all part of the same conspiracy; that
the defendant did engage in the
transactions on 9/16 and 9/19, and that
the crack cocaine found under the
defendant's bed was his cocaine and was
possessed by him with the intent to
distribute as part of the same conspiracy
that led to the conspiracy conviction and
the conviction for the 9/19 sale.
With respect to the 9/16 transaction, I
found the officer's testimony to be
persuasive and convincing, and I
personally have no doubt about in fact
that that was the defendant who made that
sale.
And with respect to the 1.88 grams found
on March 15, I have no difficulty in
finding by a preponderance of the
evidence that that cocaine is
attributable to the defendant and that it
is related to the count of conviction. I
just find completely implausible the
speculation that someone else, like Mr.
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Luna, would come in and put the cocaine
where it was found.
So for those reasons I am going to find
attributable to the defendant .37 grams
on 9/16, .39 grams on 9/19, and 1.88
grams on 3/15.
Defendant was sentenced to 57 months' imprisonment and three
years of supervised release.
Denial of Motion to Dismiss Under United States v. L pez
Denial of Motion to Dismiss Under United States v. L pez
As the Seventh Circuit explained in United States v.
Bell, 70 F.3d 495, 497 (7th Cir. 1995), L pez challenges to
various statutes have almost invariably failed.1 More
importantly, three courts of appeals have already rejected L pez
constitutional attacks on the Comprehensive Drug Abuse Prevention
and Control Act of 1970, 21 U.S.C. 801 et seq. Thus in United
States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995), the court noted
that L pez reaffirmed the principle that "where a general
regulatory statute [like the one here] bears a substantial
relation to commerce, the de minimis character of individual
instances arising under that statute is of no consequence." Id.
at 1112. In United States v. Brown, 72 F.3d 96 (8th Cir. 1995),
in upholding a conviction for use of a firearm during a drug-
trafficking offense, the court relied on Leshuk for rejecting a
L pez Commerce Clause challenge and noted that the statute
1 See, e.g., United States v. Kirk, 70 F.3d 791, 794-95 (5th
Cir. 1995), reh'g en banc granted, 78 F.3d 160 (Mar. 5, 1996);
United States v. Bishop, 66 F.3d 569, 575-89 (3d Cir. 1995),
cert. denied, U.S. , 116 S. Ct. 681 (1995).
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involved here had been found constitutional. Id. at 97. Accord
United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995).
Finally, defendant argues that this case amounts to an
abridgment of the reservation of police powers to the states
under the Tenth Amendment. Such an argument was rejected in
United States v. Owens, 996 F.2d 59, 60-61 (5th Cir. 1993),
because courts will not strike down a statute under the Tenth
Amendment where Congress was within its powers under the Commerce
Clause to enact the statute. As we have already acknowledged,
Congress had authority under the Commerce Clause to criminalize
the conduct under the statutes involved here.
Sufficiency of the Evidence
Sufficiency of the Evidence
Defendant contends that he should have been acquitted
on counts one and four because of insufficient evidence, stating
that the affidavit for the search warrant for 290 Auburn Street
on March 15, 1995, did not mention him and because the
detective's identification of defendant as the person from whom
he purchased crack cocaine on September 19, 1994, was
uncorroborated.
As to count one, it is immaterial that the affidavit
for the March 15, 1995 search at 290 Auburn Street did not
mention defendant because detective Boles identified him as being
present when the officers arrived to execute the search warrant
and defendant informed one of the police officers that he shared
the northwest bedroom in that apartment where a number of rocks
of crack cocaine were found.
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Count four, covering the distribution of cocaine on
September 19, was supported by a detective's testimony that he
requested three rocks of cocaine and purchased them from
defendant on September 19, 1994, in the alley outside defendant's
apartment. Likewise, count one related to the events of March
15, 1995. There was adequate evidence to support the convictions
on counts one and four. Thus the district court properly denied
defendant's Rule 29 motions.
Sentencing
Sentencing
It is immaterial that defendant was assessed crack
quantities underlying counts two and six, for which he was
acquitted, because they were included in conspiracy count one, on
which he was convicted. We so ruled in United States v. Ovalle-
M rquez, 36 F.3d 212, 222-24 (1st Cir. 1994), cert. denied,
U.S. , 115 S. Ct. 1322 (1995), and United States v. Mocciola,
891 F.2d 13, 16-17 (1st Cir. 1989).
Here defendant was convicted of conspiracy with others
to distribute and possess with the intent to distribute a total
of 2.66 grams of crack cocaine, as alleged in count one. As the
district judge found, the drugs involved in the September 16,
1994, and March 15, 1995, incidents were parts of the scheme
underlying the conspiracy count. The judge also found all the
cocaine was part of the same conspiracy charged in count one, so
that it was proper for him to aggregate them to determine the
base offense level. Ovalle-M rquez, 36 F.3d at 222-224; U.S.S.G.
1B1.3(a)(1)(B).
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For the foregoing reasons, defendant's convictions and
sentence are affirmed.
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