USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-2255
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN SEPULVEDA,
Defendant, Appellant.
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No. 95-2256
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN VELASQUEZ,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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William T. Murphy, by Appointment of the Court, for appellant
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Juan Sepulveda.
Stephen J. Weymouth, by Appointment of the Court, for appellant
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Juan Velasquez.
Sheldon Whitehouse, United States Attorney, with whom Stephanie
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S. Browne, Assistant United States Attorney, was on brief for the
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United States.
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December 30, 1996
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BOUDIN, Circuit Judge. On February 14, 1995, acting on
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an informant's tip that two Hispanic males were selling crack
through a side window, police detectives in Providence, Rhode
Island staked out the designated first-floor apartment. The
officers saw an unusual number of visitors going to and from
the side of the building, remaining only briefly. After
watching for an hour, an undercover detective approached one
side window, was directed to a different side window partly
covered with plywood and purchased two "rocks" of cocaine
base ("crack"), paying with two marked $20 bills.
The police then forcibly entered the apartment and found
four men inside, including appellants Juan Sepulveda and Juan
Velasquez. The apartment was unfurnished, with no signs of
personal drug use by the occupants. The undercover detective
identified Velasquez as the seller. Sepulveda's pants
pockets contained plastic bags of powder cocaine and of
crack, and a bundle of cash (including the two marked $20
bills from the earlier purchase). The police also found a
sawed-off rifle which proved to be unregistered.
Both Velasquez and Sepulveda were charged with a panoply
of drug and weapons offenses. The case proceeded to trial in
June 1995 under a redacted five-count indictment: count I
charged the defendants with conspiracy to distribute, and to
possess with intent to distribute crack. 21 U.S.C.
841(a)(1). Counts II and III, respectively, alleged
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distribution of crack and possession of crack with intent to
distribute. Id. Count IV charged the use of a firearm
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during a drug trafficking crime, 18 U.S.C. 924(c)(1), and
count V alleged possession of an unregistered sawed-off
rifle. 26 U.S.C. 5841, 5861(d), 5871. After a four-day
trial, the jury found both defendants guilty on all five
counts.
In October 1995, the district judge sentenced Sepulveda
to 70 months' imprisonment on counts I, II, III, and V, and
Velasquez to 78 months on those same counts. Both defendants
were also given a mandatory consecutive 10-year sentence
under count IV; but the government and the defendants now
stipulate that the conviction and sentence under count IV
have been undermined by Bailey v. United States, 116 S. Ct.
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501 (1995). The appeals are directed to the remaining four
counts.
I.
We begin with the more substantial of the challenges to
the convictions. First, Sepulveda asserts that the search of
his person by police officers immediately prior to his arrest
was unlawful because it was executed without a warrant or
probable cause and exceeded the lawful scope of a protective
frisk for weapons. Accordingly, Sepulveda says that the
drugs and cash discovered in his pockets should have been
suppressed, and that the remaining evidence is not enough to
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support his conviction. The government argues that Sepulveda
waived this issue by not raising it in the district court.
At a suppression hearing on June 16, 1995, the district
court ruled that the apartment search was based on probable
cause and that exigent circumstances--namely, the risk that
contraband might be destroyed--justified entry without
awaiting a warrant. Whether Sepulveda separately disputed
the search of his person, and whether the district court
intended its reasoning to cover this search as well, is not
entirely clear. Since the facts are undisputed and we review
probable cause decisions de novo, Ornelas v. United States,
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116 S. Ct. 1657, 1663 (1996), the easiest course is for us to
decide ourselves whether the search of Sepulveda himself was
valid.
The police had ample cause to arrest Velasquez, but
probable cause must exist for each person arrested, and "mere
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause
to search that person." Ybarra v. Illinois, 444 U.S. 85, 91
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(1979). The government does not argue that a mere protective
frisk of Sepulveda would have produced the money as well as
the drugs, so the question is whether the circumstances
provided probable cause to arrest--and therefore to search--
Sepulveda. United States v. Martinez-Molina, 64 F.3d 179,
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726 (1st Cir. 1995).
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The apartment in this case was unfurnished and partly
boarded up. There is no indication that it was used for any
purpose other than distribution of drugs. The numerous walk-
up sales the police had observed confirmed that the apartment
was being used for drug distribution and strongly suggested
that everyone in the apartment knew of this activity. See
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Martinez-Molina, 64 F.3d at 729. It is only a short step to
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suppose that those present in the otherwise vacant apartment
were probably drug dealers or purchasers.
The D.C. Circuit encountered similar facts in United
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States v. Holder, 990 F.2d 1327, 1329 (D.C. Cir. 1993).
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After entering an apartment and finding evidence of drug
distribution, the police arrested the individuals found
inside. The court upheld the arrest of a defendant who
claimed to be a bystander, saying that the open nature of the
drug sale activity in the apartment gave rise to a reasonable
inference that each occupant was involved in the drug trade--
either as an accomplice in the drug sales or as a customer.
Id. at 1329.
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To be sure, Sepulveda might have been an innocent
visitor. But probable cause requires only that the police
have "reasonable grounds to believe" that Sepulveda had
committed the crime. See United States v. Melvin, 596 F.2d
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492, 495 (1st Cir. 1979). The facts of this case persuade us
that there was ample reason for the police to think that
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Sepulveda was engaged in a felony. Given probable cause
prior to the search, it is irrelevant that the formal arrest
may have followed the search. Rawlings v. Kentucky, 448 U.S.
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98, 111 & n.6 (1980).
Second, Velasquez argues that the district court erred
in the jury instructions by failing to tell the jury,
according to his brief on appeal, "that it could not base a
conviction of possession with intent to distribute cocaine
base under count III on the same conduct that formed the
basis for the distribution count (Count II)." The government
says (correctly) that Velasquez did little to explain his
"concern" to the district court, making no request for any
specific curative language. The objection was as follows.
I have a concern as it deals with the charge of
possession with intent to sell--distribute. The
Court knows, based on the evidence that it is
alleged that there was a quantity of contraband
allegedly in Mr. Sepulveda's pocket. I am
concerned just based on the charge as it pertains
to the definition that the Court instructed, as it
pertains to the possession with intent to
distribute, that the jury may in fact confuse that
with the delivery. In other words, your Honor, I'm
concerned that by virtue of the fact that we have a
delivery charge and we have a possession with
intent to distribute charge, I'm concerned that the
jury may confuse them or think that they are in
fact one and the same.
A request for specific curative language may sometimes
be needed to convey the substance of a requested addition or
correction to the charge, and the absence of a specific
request may prove fatal. E.g., Parker v. Nashua, 76 F.3d 9,
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12 (1st Cir. 1996). Still, one can imagine cases where some
other formula might, in context, convey all of the needed
information (e.g., "I object to the definition of
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`possession' because . . . ."). Here, based on the district
judge's response, we think it is unclear that the district
judge understood the objection to be the "same conduct" claim
that Velasquez is now pressing on appeal.
In any event, to the extent we understand the objection
now, it appears to us to be ill-founded. Explaining why
requires some background. Under Blockburger v. United
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States, 284 U.S. 299 (1932), a defendant can be convicted of
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two differently defined offenses, based on the same core of
facts, so long as each offense requires an element that the
other does not. Id. at 304. The offense of distribution
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obviously does require an element not required for the crime
of possession with intent, namely, the act of distribution.
It is possible--albeit unusual--to be guilty of
distribution of a drug without also possessing it with intent
to distribute. Someone who participates in a drug transfer-
-e.g., as a broker or armed guard--can be liable for
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distribution without ever possessing the drugs. See, e.g.,
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United States v. Brunty, 701 F.2d 1375, 1381 & n.16 (11th
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Cir. 1983). While "possession" is certainly helpful in
proving distribution, it is technically not a necessary
element. United States v. Tejada, 886 F.2d 483, 490 (1st
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Cir. 1989). Compare 2 Sand et al., Modern Federal Jury
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Instructions, 56-24 to 56-26, 56-4 (1992).
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But satisfying Blockburger has not wholly satisfied the
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circuit courts. Where the evidence shows only that a
defendant handed over a packet of drugs, some courts have
balked at the idea that Congress intended to allow a
conviction both for possession with intent and for
distribution. E.g., United States v. Meredith, 824 F.2d
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1418, 1426 (4th Cir. 1987). Other circuits have said that
conviction on both counts is permitted, but that a defendant
may only be sentenced on one. See, e.g., United States v.
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Palafox, 764 F.2d 558, 562 (9th Cir. 1985).
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By contrast, this court, following the Fifth Circuit,
United States v. Zabaneh, 837 F.2d 1249, 1257 (5th Cir.
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1988), has said that "the offenses merge only where the
distribution itself is the sole evidence of possession, or
where possession is shown to exist only at the moment of
distribution," United States v. Rodriguez-Cardona, 924 F.2d
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1148, 1159 (1st Cir. 1991), and we have also made clear that
a defendant could be convicted of both offenses, with respect
to the same drug, so long as there was proof that he
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possessed the drug (with intent to distribute) at some point
earlier than the distribution itself. Tejada, 886 F.2d at
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490.
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It is doubtful that the game (reflected in these various
distinctions drawn by the circuits) is worth the candle where
both offenses are prosecuted at the same time. In most
configurations, the guidelines will assure that the sentence
is the same for one or both, save for the $50 mandatory
assessment. U.S.S.G. 3D1.1, 3D1.3 (Nov. 1994). And so
far as we can tell, only the $50 assessment is at issue here.
But based on this stake alone, Rutledge v. United States, 116
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S. Ct. 1241, 1247 (1996), prevents us from treating the issue
as moot.
In any event, the disagreement between the circuits is
irrelevant here, as is the narrower concern that prompted
this court in Tejada and Rodriguez-Cardona. Velasquez was
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plainly shown to have distributed two rocks that he sold
through the window to the detective. It is scarcely less
clear that the jury regarded Velasquez as constructively
possessing with intent to distribute quite separate packages
of crack that Sepulveda had in his pocket. Thus, Velasquez
was guilty of both crimes based upon different drugs.
The constructive possession finding is inference but
almost inescapable. By convicting Sepulveda of distribution
and finding both defendants liable of possessing the same
gun, the jury made clear its view that both men were partners
in the same criminal enterprise, a view borne out not only by
circumstances but by Sepulveda's possession of the marked
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bills handed to Velasquez through the window. On this basis,
it follows that Velasquez was also liable on the possession
charge for the crack carried by Sepulveda.
II.
Velasquez challenges his sentence on several grounds.
The most important ground concerns the treatment of the cash
found in Sepulveda's pockets; the district court treated the
entire amount as proceeds from the sale of crack. Velasquez
argues that the cash should not have been converted into an
equivalent quantity of drugs at all and, if converted, should
have been treated as proceeds of powder cocaine.
When the police searched Sepulveda, they discovered in
his pockets $335 in cash, five plastic bags of crack and
three plastic bags of powder cocaine. The cash included the
two marked $20 bills that the detective had exchanged for two
"rocks" of crack, leaving $295. The probation officer said
that this remaining amount likely represented the proceeds of
prior crack sales but, to give "the benefit of the doubt" to
the defendants, recommended that the cash be converted into
an equivalent of powder cocaine rather than crack.
The government objected vigorously. It argued that the
convictions were for crack, that powder cocaine counts had
been dropped (because the amount of powder did not warrant an
inference of possession with intent), and that "all of the
facts" pointed to crack distribution and none to powder
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cocaine. The probation officer replied that there was
"perhaps[] a greater likelihood that the seized money
represented the proceeds from prior sales of crack cocaine";
but the presence of three bags of powder persuaded the
probation officer to stand by her earlier recommendation.
At the sentencing, the government pressed its objection,
arguing that the $295 should be translated into crack, and
the district court sided with the government. As crack is
punished much more seriously than cocaine powder, see United
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States v. Armstrong, 116 S. Ct. 1480, 1492 (1996) (Stevens,
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J., dissenting), the effect of the court's ruling (based on
calculations that we need not describe because they are not
disputed) was to increase the base offense level on the drug
counts from 18 to 26. The district court then sentenced
Velasquez to the minimum permitted by the guideline range for
level 26 and his criminal history category of III, namely, 78
months.
There is nothing to Velasquez' primary objection in the
district court, renewed on appeal, that the $295 should not
be converted into drugs at all. A reasonable factfinder
could conclude that it was more likely than not that
Sepulveda and Velasquez were partners in a drug operation,
Sepulveda holding the drugs and money and Velasquez
completing the transactions at the side window. The co-
mingling of the $40 in marked bills, and the lack of any
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other obvious source for the $295, made it reasonable to
attribute the money to drug dealing properly included in the
sentence. See United States v. Gerante, 891 F.2d 364, 368-69
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(1st Cir. 1989).
The more difficult question is whether the $295 should
all be treated as proceeds of crack transactions or should be
treated as powder, which Velasquez now urges as a fall-back
position. The government says that Velasquez did not urge
this alternative in the district court where, needless to
say, his main argument was against treating the money as drug
proceeds at all. But the alternative of treating the money
as powder sales was presented by the presentence report and
squarely rejected by the district judge in favor of treating
the money as proceeds from crack.
In arguing for the probation officer's solution,
Velasquez invokes our own admonition that courts must "err on
the side of caution" in choosing among a number of plausible
estimates of drug quantity. United States v. Jackson, 3 F.3d
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506, 510 (1st Cir. 1993); United States v. Sklar, 920 F.2d
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107, 113 (1st Cir. 1990). But this "caution" has a more
precise office that is best understood by quoting directly
from the opinion from which Jackson and Sklar borrowed the
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quoted language:
If the exact amount cannot be determined, an
estimate will suffice, but here also a
preponderance of the evidence must support the
estimate. Thus when choosing between a number of
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plausible estimates of drug quantity, none of which
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is more likely than not the correct quantity, a
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court must err on the side of caution.
United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)
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(emphasis added).
Walton's caution would apply if (for example) the
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district court had found that the $295 might represent sales
of crack or, to an equal likelihood, might represent sales of
both crack and powder. But here the district court found
that the money all represented crack sales. The court was
obviously making a submerged judgment about probabilities
(only the defendants know for sure); but it plainly thought
that the finding it made was more likely than not to be true.
The standard of review on this issue is "clear error."
Gerante, 891 F.2d at 368. Based on the facts already
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recited, we think there is no way to describe the district
court's determination as irrational, highly speculative, or
without a basis in the evidence. The money was found in the
hands of persons who had been identified in advance as crack
dealers, had crack in their possession and had just completed
a sale to the police of crack. There was no direct evidence
of powder sales at all.
The district court could certainly have taken a
different view of the matter. The defendants did have three
bags of powder cocaine, suggesting that they might be in both
lines of business. And, while the government pointed to the
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smallness of the amount of powder, conflicting inferences of
this kind are matters to be weighed by the trier of fact.
But that is precisely the point: it was for the district
court to make these judgments and absent a clear mistake, we
have no warrant to intervene.
III.
The defendants make several other claims that
require no detailed discussion. Velasquez says that the
evidence was inadequate to support convictions on any of the
remaining counts and Sepulveda makes the same claim as to
count V. The facts already recounted make it plain that
there was ample evidence to convict both defendants on the
drug counts, and we are not going to waste time on this
issue.
The evidence as to the weapon, which underpinned the two
gun counts, has not been recounted but was also sufficient.
Inside the apartment, the police found an opening in the
ceiling through which the butt of a gun could be seen. The
gun proved to be a fully operational sawed-off rifle. The
location was within an arm's length of the barricaded window
through which the sale had been made to the detective, and
the butt could be reached easily by someone of average height
standing inside the apartment at the window.
Given the circumstances--the vacant apartment, the
actual sale, the additional drugs carried by Sepulveda--a
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reasonable jury could easily infer that the apartment was the
base used by Sepulveda and Velasquez to retail their drugs.
From the placement of the weapon, it could also be reasonably
inferred that the defendants kept it there, well positioned
and available, for potential use in overawing an unruly
customer or confronting a rival dealer. In short, the weapon
could be attributed to the defendants and, coupled with
evidence that the rifle was unregistered, this was enough to
convict. See U.S.C. 5841, 5861(d), and 5871.
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The same evidence was also used to convict the
defendants on the "use or carry" charge under U.S.C.
924(c)(1). As to this count, the government's theory, and
the jury instructions, were based on our pre-Bailey decisions
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which defined "use" more broadly than is now permissible.
The government and defendants have already stipulated that
the convictions of both defendants must be reversed under
Bailey, together with the mandatory consecutive sentence
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imposed on this count. We agree.
The convictions and sentences on counts I-III and V are
affirmed, the convictions and sentences on count IV is
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reversed, and the matter is remanded to the district court
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for proceedings consistent with this decision.
It is so ordered.
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