United States Court of Appeals
For the First Circuit
No. 01-2318
UNITED STATES OF AMERICA,
Appellee,
v.
RAUL LUCIANO,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, Chief U.S. District Judge]
Before
Lynch, Circuit Judge,
Farris, Senior Circuit Judge,*
and Lipez, Circuit Judge.
Randy Olen, with whom John M. Cicilline was on brief, for
appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, were on brief for
appellee.
May 6, 2003
*
Of the United States Court of Appeals for the Ninth Circuit,
sitting by designation.
LIPEZ, Circuit Judge. Immediately after a buy-and-bust
sting, government agents conducted a warrantless search of
defendant-appellant Raul Luciano's "stash house" and found a
sizable quantity of heroin, drug paraphernalia, and two 9mm
handguns. Later, a two-count indictment issued, charging Luciano
with possession with intent to distribute over 100 grams of heroin,
see 21 U.S.C. § 841(a)(1), (b)(1)(B), and possession of a firearm
in furtherance of a drug trafficking crime, see 18 U.S.C. §
924(c)(1)(A).
Before the case went to trial, Luciano unsuccessfully
moved to suppress the evidence discovered during the search. The
trial itself lasted less than two days. After barely two hours of
deliberations, the jury returned a verdict of guilty on both
counts. The court sentenced Luciano to sixty-three months'
imprisonment on the drug possession count and sixty months'
imprisonment on the gun possession count, the terms to be served
consecutively as required by the gun possession statute. See id.
§ 924(c)(1)(D)(ii).
On appeal, Luciano presents two claims. First, he argues
that the evidence was insufficient to support a finding that he had
possessed a firearm "in furtherance of" a drug trafficking crime.
Second, he claims that government agents failed to obtain his
voluntary consent before conducting a warrantless search, and that
the district court therefore erred in denying his motion to
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suppress the drugs and firearms evidence. Rejecting both of
Luciano's claims, we affirm.
I.
Most of the underlying facts in this case are not in
dispute.1 On February 20, 2001, agents from the Drug Enforcement
Administration ("DEA") convinced a female cooperating individual
("CI") to contact Luciano and schedule a drug purchase in
Providence, Rhode Island. The CI met Luciano on Wayland Avenue in
Providence, and they drove in separate cars to a three-story
tenement building located at 31 Grape Street. Unbeknownst to
Luciano, DEA agents followed in unmarked vehicles.
While Luciano was in the apartment building, agents
established positions around the premises. A few minutes later,
Agent Philip Bernal saw Luciano walk down the driveway towards the
CI, who was waiting in her car parked on the street. Luciano was
carrying a small parcel. When Luciano opened the door to the CI's
car, Bernal approached with his gun drawn, identified himself as
law enforcement, and told Luciano to put his hands in the air.
Luciano complied, stepping back from the car and dropping the
parcel. Bernal placed Luciano in handcuffs as four or five
1
The first morning of trial, before the jury was empaneled,
defense counsel indicated in open court that his client would be
willing to plead guilty to and accept responsibility for the drug
possession count, but for the government's refusal to drop the gun
possession charge (which would, in effect, double Luciano's
sentence).
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additional agents came to the scene. The parcel was later found to
contain a total of 6.5 grams of 92% pure heroin, divided into 800
glassine packets, each packet containing an individual dose. Some
of the packets were stamped with a "bad boy" figure.2
Immediately after Bernal arrested Luciano, Special Agent
James McCormick asked Luciano where he had just been inside the
building. Luciano replied, "[t]hird floor." Several agents were
then dispatched to the third floor of the building to conduct a
"protective sweep." Agent Roberto DaSilva approached Luciano and
advised him of his Miranda rights — first in English, then in
Spanish. Luciano indicated to DaSilva that he understood his
rights. DaSilva then asked Luciano for permission to search the
third-floor apartment. Luciano responded, "[g]o ahead."
Agents led Luciano up to the sparsely-furnished third-
floor apartment where he was uncuffed and placed in a chair at the
kitchen table. DaSilva, who is bilingual, once again informed
Luciano of his Miranda rights in English and in Spanish. Luciano
was then given a consent-to-search form which provided in English:
1. I have been asked to permit special
agents of the Drug Enforcement
Administration to search . . . 31 Grape
Street, Apt #3 (3rd floor), Providence,
RI;
2. I have not been threatened nor forced
in any way;
2
At trial, Agent Bernal described the "bad boy" figure as "an
individual with a crew cut . . . giving the finger." The stamp is
used to identify the heroin as a particular "brand."
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3. I freely consent to this search.
The address had been written in by hand on the pre-printed form by
Special Agent John O'Donoghue. O'Donoghue asked Luciano if he
understood English, and Luciano responded in the affirmative.
O'Donoghue then read the consent form to Luciano and asked Luciano
to read it. Luciano, after reading the form, volunteered that he
understood it. O'Donoghue then asked Luciano again, "are you sure
you understand?" Luciano again answered in the affirmative and
signed the form, which O'Donoghue and another agent signed as
witnesses.
During the subsequent search, agent Bernal noticed a
square panel in the ceiling that appeared to give access to an
attic or crawl-space. Bernal mounted a chair and pushed the panel
aside. Looking into the crawl-space, Bernal noticed a large black
plastic bag near the edge, which he could reach without actually
climbing into the opening. Bernal took the bag down and inspected
the contents. Inside the black bag was another bag containing
371.6 grams of heroin — potentially over 40,000 individual doses.
It also contained a digital scale with heroin residue on it, two
coffee grinders with heroin residue on them, a sifter and spoon
with residue, and ten boxes of glassine packets identical to those
found in the parcel that Luciano had dropped on the ground outside
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the building.3 Like those in the parcel, some of the packets were
stamped with a "bad boy" figure. At trial, Bernal, O'Donoghue, and
DaSilva all testified that when the bag was brought into the
kitchen, Luciano stated, "you got me" (or words to that effect),
and admitted that the bag belonged to him.
Agent O'Donoghue then returned to the opening in the
ceiling and climbed into the crawl-space. Using his flashlight, he
discovered a smaller bag, at least eighteen inches from the edge of
the opening. That bag contained two 9mm handguns and two loaded
(but detached) magazines. Subsequent tests demonstrated that the
magazines fit the guns and that the guns worked.
Luciano was then removed to DEA headquarters where he was
questioned again by Agent DaSilva. The interrogation was
audiotaped and ultimately entered into evidence at trial. At the
beginning of the interrogation, DaSilva advised Luciano of his
Miranda rights a third time in English and Spanish, and Luciano
indicated that he understood those rights. DaSilva and Special
Agent Anthony Cardello then interviewed Luciano in English.
Luciano again admitted that the drugs and the drug paraphernalia in
the crawl-space belonged to him. While initially equivocating, he
ultimately admitted that the guns were his as well:
3
At trial, Agent Bernal testified that these sundry items are
used by heroin dealers to process heroin from the rock-hard
substance imported from overseas into the powder form that is sold
on the street.
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DaSilva: That stuff that we found in your
apartment, that was yours?
Luciano: Yeah.
[. . . .]
DaSilva: OK, so the stuff is yours, how
about the guns? Are . . . are
they yours too?
Luciano: I don't know.
Cardello: What do you mean you don't know?
Luciano: The stuff is mine.
DaSilva: The stuff was yours, ah, how much,
how much heroin was there?
Luciano: I don't know.
DaSilva: What would you guess?
Luciano: Two to three hundred . . .
DaSilva: Two to three hundred grams?
Luciano: Yeah.
DaSilva: How about the, ah, all the
packaging materials and all that,
was that all yours also?
Luciano: Yeah.
[. . . .]
After some overlapping voices and unintelligible conversation, the
questioning returned to the guns:
Cardello: The guns and the heroin?
Luciano: Everything is mine and that's it.
Luciano then requested a lawyer, and the agents immediately stopped
their questioning.
II.
Luciano claims that the government presented insufficient
evidence at trial to sustain a conviction for the second count —
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the gun possession charge.4 See 18 U.S.C. § 924(c)(1)(A).5
Specifically, Luciano argues that the guns found in the crawl-space
"played no role whatsoever in the drug transaction; no 'nexus'
existed between the firearms and the drug selling operation."
Thus, he maintains, his possession of the firearms was not, as the
statute requires, "in furtherance of" his drug trafficking.
Therefore, the argument goes, his conviction under § 924 must be
reversed.
Before considering the merits of Luciano's claim, we note
that Luciano did not make this argument to the district court. In
fact, he never made a Rule 29 motion for judgment of acquittal —
not at the close of the government's case, not at the close of his
own case, and not after the jury had returned its verdict. We have
consistently held that claims of insufficient evidence must be
presented in the first instance to the district court. See United
States v. Van Horn, 277 F.3d 48, 54 (1st Cir. 2002). Since Luciano
4
Luciano does not challenge on appeal his conviction for the
first count of the indictment — the drug possession charge.
5
Section 924 provides in pertinent part:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . uses or carries
a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
crime . . . be sentenced to a term of imprisonment of not
less than 5 years . . . .
18 U.S.C. § 924(c)(1)(A) (emphasis added).
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failed to make his insufficiency argument below, he "must . . .
demonstrate 'clear and gross' injustice, or 'manifest injustice'
before the conviction is overturned on that ground." United States
v. Kilcullen, 546 F.2d 435, 441 (1st Cir. 1976) (quoting
Malatkofski v. United States, 179 F.2d 905, 910 (1st Cir. 1950),
and United States v. Principe, 482 F.2d 60, 61 n.1 (1st Cir.
1973)); see United States v. Serafino, 281 F.3d 327, 333 (1st Cir.
2002) (indicating that appellant must demonstrate "clear and gross
injustice" to succeed on unpreserved insufficiency claim); Van
Horn, 277 F.3d at 54 (same); United States v. Santiago, 83 F.3d 20,
23 (1st Cir. 1996) (same); United States v. Concemi, 957 F.2d 942,
950 (1st Cir. 1992) (same); United States v. Jiminez-Perez, 869
F.2d 9, 11 (1st Cir. 1989) (same); United States v. Greenleaf, 692
F.2d 182, 185 (1st Cir. 1982) (same).6
The "in furtherance of" language that Luciano puts at
issue on appeal is a relatively recent addition to § 924. Congress
added the phrase following the Supreme Court's decision in Bailey
6
While our review for "clear and gross injustice" may sound
akin to plain error review's "miscarriage of justice" standard, see
United States v. Olano, 507 U.S. 725, 736 (1993), we have generally
avoided framing the review of unpreserved insufficiency claims in
terms of "plain error," as the cases cited in the text attest. But
see United States v. Pena-Lora, 225 F.3d 17, 26 (1st Cir. 2000)
(using "clear and gross injustice" standard for reversal when
reviewing unpreserved insufficiency claim for "plain error").
Other circuits characterize the review as one for plain error only.
See, e.g., United States v. Morgan, 238 F.3d 1180, 1186 (9th Cir.
2001); United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.
2000) (per curiam).
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v. United States, 516 U.S. 137 (1995). The prior version of the
statute applied only where a defendant "during and in relation to
any . . . drug trafficking crime . . . uses or carries a firearm."
18 U.S.C.A. § 924(c)(1) (West 1995). Bailey held that this
language required the government to produce "evidence sufficient to
show an active employment of the firearm by the defendant, a use
that makes the firearm an operative factor in relation to the
predicate offense." 516 U.S. at 143. Congress then amended the
statute so that it would apply when a defendant merely "possesses"
a firearm "in furtherance of" a drug trafficking crime. See Act of
Nov. 13, 1998, Pub. L. 105-386, § 1(a), 112 Stat. 3469 (amending 18
U.S.C. § 924); United States v. Timmons, 283 F.3d 1246, 1252–53
(11th Cir. 2002) (describing legislative history).
We do not have to explore exhaustively the semantic
contours of "in furtherance of" in order to resolve this appeal.
However, we must address Luciano's contention that he was entitled
to a judgment of acquittal on the gun possession charge because
there was no nexus linking the firearms in the crawl-space to the
attempted drug sale that took place in front of 31 Grape Street.
In his brief, Luciano focuses exclusively on his
encounter with the CI outside the building. He states: "It is
undisputed that the illegal transaction took place outside of the
apartment which housed the firearms." Since "[n]o part of the
transaction took place within the apartment," he maintains, the
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firearms that were subsequently found there were not possessed "in
furtherance of" that transaction, as required by the statute. See
18 U.S.C. § 924(c)(1)(A).
Luciano's argument suffers from a fatal misapprehension
of the underlying "drug trafficking crime." The drug trafficking
crime underlying Luciano's § 924 conviction was Count I of the
indictment — possession with intent to distribute more than 100
grams of heroin, 21 U.S.C. § 841(a)(1), (b)(1)(B). See 18 U.S.C.
§ 924 (c)(2).7 As indicated above, Luciano does not challenge his
conviction on Count I. The parcel that Luciano brought from the
house to the CI in the car, however, contained a mere 6.5 grams of
heroin. Thus, when the jury found Luciano guilty of possession
with intent to distribute more than 100 grams of heroin (Count I),
the jury inescapably found that Luciano possessed the drugs found
in the crawl-space. Hence the predicate drug trafficking crime for
Luciano's § 924 conviction pertained to the heroin found in the
7
Subparagraph (c)(2) provides:
For purposes of this subsection, the term "drug
trafficking crime" means any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C.
951 et seq.), or the Maritime Drug Law Enforcement Act
(46 U.S.C. App. 1901 et seq.).
18 U.S.C. § 924 (c)(2).
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parcel and the drugs found in the crawl-space — the same crawl-
space where the firearms and loaded magazines were discovered.8
The government offered uncontradicted testimony that the
heroin in the crawl-space had a retail street value of over
$200,000, and that firearms are often used by drug dealers to
protect drug stockpiles, to preempt encroachment into a dealer's
"territory" by rival dealers, and for retaliation. Presented with
this evidence, the jury found that Luciano had possessed a firearm
in furtherance of a drug trafficking crime. Given the close
proximity of the firearms and loaded magazines to the significant
stockpile of heroin, we have no difficulty concluding that there
was a sufficient nexus between the drug trafficking crime and the
firearms to sustain a conviction under § 924. See United States v.
Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000) ("Together,
these factors reasonably support a finding that [the firearms]
protected his drugs and money against robbery. Possession of the
[firearms] was, therefore, in furtherance of drug trafficking.").9
8
Indeed, Luciano admitted during his interrogation that the
drugs, the drug paraphernalia, and the firearms in the crawl-space
were his.
9
Although we have applied the "clear and gross injustice"
standard of review because of Luciano's failure to present his
insufficiency claim below, we would come to the same conclusion if
he had properly objected to the sufficiency of the evidence and we
were applying the de novo standard of review. See United States v.
Frankhauser, 80 F.3d 641, 650 (1st Cir. 1996) (in reviewing
properly preserved insufficiency claim, "we examine the record in
the light most favorable to the verdict, drawing all reasonable
inferences and credibility determinations in its favor, in an
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III.
The Fourth Amendment to the United States Constitution
prohibits "unreasonable searches and seizures." U.S. Const. amend.
IV. A warrantless search of a residence violates this proscription
unless the search comes within one of a "few specifically
established and well-delineated exceptions." Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United
States, 389 U.S. 347, 357 (1967)). One such exception is a search
undertaken with the consent of the homeowner. Id. Before the
district court, Luciano moved to suppress the evidence discovered
in the crawl-space as the fruit of an unlawful, nonconsensual
search. The district court conducted a suppression hearing and
heard testimony from four agents and from Luciano himself. At the
end of the hearing, the court ruled from the bench that Luciano
lacked credibility as a witness and that Luciano had consented to
the search verbally and in writing. Moreover, the court found that
Luciano sufficiently understood English to render his consent
meaningful, and that his ability to consent was not impaired by
alcohol intoxication.
"A district court's findings of fact on a motion to
suppress are reviewable only for clear error as to consent."
United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). The
effort to ascertain whether the proof would allow a rational jury
to find every essential element of the crime charged beyond a
reasonable doubt").
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judge has had the "opportunity to hear the testimony, observe the
witnesses' demeanor, and evaluate the facts at first hand." Id.
We will reverse only if we are "left with the definite and firm
conviction that a mistake has been committed." United States v.
Barnett, 989 F.2d 546, 556 (1st Cir. 1993) (citations omitted).
"The question of whether a consent to a search was in fact
'voluntary' or was the product of duress or coercion, express or
implied, is a question of fact to be determined from the totality
of the circumstances." Schneckloth, 412 U.S. at 227.
At the suppression hearing, Agent DaSilva testified that
he had "Mirandized" Luciano twice — once outside 31 Grape Street,
and once again in the third-floor apartment — both times in English
and Spanish. At the hearing, DaSilva authenticated a copy of the
standard-issue card from which he read the warnings. He also
testified that Luciano had orally consented to a search of the
apartment immediately after Da Silva had delivered his first set of
Miranda warnings. Other agents testified that they had witnessed
these exchanges between DaSilva and Luciano. Luciano, however,
testified that none of the foregoing had taken place — no verbal
Miranda warnings and no oral consent. The district court
explicitly rejected Luciano's testimony as incredible, while
crediting the testimony of the agents.
The district court was more than justified in rejecting
the testimony of Luciano as "preposterous." The court observed
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that Luciano offered patently incredible testimony regarding the
parcel he delivered to the car — that he had found it under some
grass in the backyard of the building. Luciano made inconsistent
representations concerning the amount of time he had spent in the
United States. He also claimed not to understand English, despite
having spent twelve of his thirty years — including third through
eighth grades — in the United States, despite the transcript from
his interrogation in which he indicated that he understood English,
and despite correcting the court interpreter as he translated
during the suppression hearing. Finally, Luciano's testimony was
peppered with implausibilities and suspicious lapses in memory.
More damning is the written, signed consent form executed
by Luciano himself and witnessed by two agents. Luciano claims
that he had failed to understand the substance of what he was
signing. Agent O'Donoghue testified, however, that he had read the
form out loud to Luciano, that Luciano had read it himself, and
that Luciano affirmatively indicated his understanding of it.
Moreover, the form was in simple English. As the preceding
paragraph indicates, the district court was justified in concluding
that Luciano possessed sufficient English language skills to
understand that he was consenting to a search.
Luciano argues that, even if he understood that he was
consenting, his consent was involuntary and therefore invalid. See
Bumper v. North Carolina, 391 U.S. 543, 548 (1968) ("When a
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prosecutor seeks to rely upon consent to justify the lawfulness of
a search, he has the burden of proving that the consent was, in
fact, freely and voluntarily given."). He relies on three
considerations. First, Luciano argues that his judgment was
impaired by his intoxication. See United States v. Johnson, 563
F.2d 936, 939 (8th Cir. 1977) ("If the trial court had found that
by reason of extreme intoxication the defendant's consent was not
the product of a rational intellect and a free will, then the
consent would not have been valid."). The district court
explicitly found, however, that Luciano was not so intoxicated as
to render his consent ineffective. The court noted that Luciano
was sober enough to drive from Wayland Avenue to Grape Street to
effectuate his drug sale. Moreover, several agents testified that
Luciano did not appear drunk or behave as if he were so intoxicated
that he could not understand the rights he was explicitly waiving.
Second, Luciano argues that the consent was coerced
because agents had threatened his girlfriend. Luciano relies on
United States v. Bolin, 514 F.2d 554 (7th Cir. 1975), in support of
this argument. See id. at 560–61. ("In view of the fact that the
defendant signed the consent form while undergoing custodial
interrogation and only after he had been impliedly threatened that
his girl friend would be arrested if he did not sign, we hold that
the consent was involuntary and therefore invalid."); see also
Bumper, 391 U.S. at 550 ("Where there is coercion there cannot be
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consent."). At the suppression hearing, Luciano testified that he
had signed the consent form because agents told him that "they were
going to find my girlfriend and do something to her, and I was very
scared." In its statement of reasons for denying the motion to
suppress, the district court did not make an explicit finding
regarding Luciano's claim of coercion or duress. However, given
the district court's rejection of Luciano's testimony as
"preposterous," the district court impliedly rejected any claim of
coercion on the part of the government agents. The district court
did not err in that finding.
Finally, Luciano argues that he was coerced into
consenting because immediately after Agent Bernal handcuffed him —
and before the government claims Luciano gave his consent — agents
were dispatched to the third-floor apartment to conduct a search.
Since the search was already well underway when he was asked for
his consent, he claims he could not have reasonably known that he
could still refuse the search. See United States v. Tovar-Rico, 61
F.3d 1529, 1536 (11th Cir. 1995) ("[Defendant] had already observed
officers explore every room in the apartment and could not
reasonably have known that she could still refuse a search.").
Luciano never made this argument to the district court in
support of his motion to suppress. Therefore, we will not consider
it for the first time on appeal. United States v. Santos Batista,
239 F.3d 16, 19 (1st Cir. 2001) ("Failure to raise suppression
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arguments before trial shall constitute waiver thereof."); United
States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) ("[W]hen a party
fails to raise a theory at the district court level, that theory is
generally regarded as forfeited and cannot be advanced on
appeal."). This case underscores the importance of this rule. As
the government persuasively argues, if Luciano had made this claim
below, the government would have introduced evidence and arguments
regarding the timing and nature of the search, whether exigent
circumstances mandated a protective sweep, and (assuming that the
search was improper) whether the discovered evidence was admissible
under some other theory.10
"The voluntariness of a consent to search turns on an
assessment of the totality of the circumstances." Barnett, 989
F.3d at 554–55. Having carefully considered all of Luciano's
arguments regarding the facts and circumstances relating to the
search, we conclude that the district court did not err in finding
that Luciano had validly consented to the search of the third-floor
apartment. The district court properly denied the motion to
suppress.
10
Since the record is undeveloped concerning the timing of the
agents' entry, the nature of their initial presence in the
apartment, and the scope of any protective sweep, Luciano cannot
even avail himself of plain error review. See Torres, 162 F.3d at
11 n.2 ("[Plain error review] has no applicability where, as here,
the defendant has failed to develop the necessary factual record
undergirding a particular suppression claim.").
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AFFIRMED.
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