Filed: Jul. 19, 2013
Latest Update: Mar. 28, 2017
Summary: 3, The district court focused on the facts that Cintron was, capable of answering questions, that he was attempting to broker a, deal, and that Cintron was familiar with the criminal justice, system having been arraigned on 64 charges as an adult and 19, charges as a juvenile.Cintrons left pocket.
United States Court of Appeals
For the First Circuit
No. 11-1625
UNITED STATES OF AMERICA,
Appellee,
v.
MOISES CINTRON,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Torresen,** District Judge.
Page Kelley, Office of the Federal Public Defender, with
whom Rheba Rutkowski, Assistant Federal Public Defender, was on
brief for appellant.
David M. Lieberman, U.S. Dept. Of Justice, with whom Carmen
M. Ortiz, United States Attorney, Lanny A. Breuer, Assistant
Attorney General, and John D. Buretta, Deputy Assistant Attorney
General, were on brief for appellees.
July 19, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
**
Of the District of Maine, sitting by designation
TORRESEN, District Judge. Appellant Moises Cintron
entered a conditional guilty plea to a single-count indictment
charging him with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Cintron preserved his right
to appeal the denial of his motions to suppress the firearm
seized from him during a lawful traffic stop.1 On appeal,
Cintron argues that the district court abused its discretion by
denying his first motion to reconsider and second motion to
suppress without holding an evidentiary hearing. For the reasons
set forth below, we affirm the district court.
BACKGROUND
On November 5, 2007, Massachusetts State Police Trooper
Richard Gaudet observed a Nissan Maxima driving erratically on
Route 128 in Lynnfield, Massachusetts. Trooper Gaudet activated
his lights and signaled the driver to stop. The car came to a
halt in the middle of the passing lane of the busy highway.
Trooper Gaudet, joined by Trooper Stevie Browning and Sergeant
James Deyermond, approached the car and discovered a female
driver, a young girl in the passenger seat, and Cintron draped
1
Although Cintron filed a motion to suppress the gun and
statements made after his arrest, a motion to reconsider this
motion, a second motion to suppress the gun, and a motion to
reconsider the second motion to suppress, only the denial of the
second motion to suppress and the motion to reconsider the first
motion to suppress were preserved for appeal.
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across the backseat either asleep or unconscious.
While Trooper Browning spoke with the driver, Sergeant
Deyermond tried to rouse Cintron, first banging on the back
passenger-side window, then opening the door and shaking him.
When Cintron awoke, Sergeant Deyermond helped him out of the car.
During this process, which took only minutes, Trooper Gaudet
noticed a gun protruding from Cintron’s pocket. Once the gun was
secured, Cintron was arrested and taken back to the station where
he made some incriminating statements. Cintron was ultimately
charged with being a felon in possession of a firearm.
In July of 2008, Cintron’s first court-appointed
attorney filed a motion to suppress the gun and the statements
that Cintron made at the station. In support of the motion,
court-appointed counsel filed an affidavit sworn to by Cintron
stating that he had not consented to the roadside stop or search.
Three days after the motion to suppress was filed, Cintron’s
second lawyer – this one retained – entered an appearance in the
case.2
2
Cintron had three attorneys during the course of the
underlying proceedings: the first was a court-appointed attorney;
the second was counsel Cintron retained; and the third was the
federal defender appointed to represent Cintron after his retained
counsel withdrew. The opinion will refer to the lawyers as “court
appointed,” “retained,” and “federal defender” to help the reader
keep the players straight.
-3-
On August 15, 2008, the government filed its opposition
to the motion to suppress, attaching, among other items, Trooper
Browning’s arrest report and Trooper Gaudet’s Supplemental Report
and affidavit. Trooper Browning’s arrest report stated that
while he was talking to the driver of the car, Trooper Gaudet and
Sergeant Deyermond were helping Cintron out of the car. Trooper
Browning heard Trooper Gaudet yell “gun!” and saw Trooper Gaudet
take a gun out of Cintron’s jacket pocket. In his report and
affidavit, Trooper Gaudet gave an account that was consistent
with Trooper Browning’s. Trooper Gaudet saw a gun coming out of
Cintron’s left jacket pocket as Cintron started to get out of the
car. Trooper Gaudet ran over to the passenger side of the car
and grabbed the gun from Cintron’s pocket.
On November 26, 2008, Cintron’s retained counsel
averred in an affidavit that a drug recognition expert evaluated
Cintron at the station after his arrest and concluded that
Cintron was under the influence of a narcotic analgesic.
Retained counsel argued that Cintron could not have voluntarily
waived his Miranda rights given his impaired condition.
On December 15, 2008, the district court denied
Cintron’s motion to suppress the gun without a hearing,
concluding that the seizure was justified under the plain view
doctrine because the affidavits established that Trooper Gaudet
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saw the gun protruding from Cintron’s pocket before it was
seized. See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971).
The district court scheduled an evidentiary hearing to determine
whether Cintron had voluntarily waived his Miranda rights.
During the hearing, Officer Scott Frost, the drug recognition
expert who evaluated Cintron at the police station, testified
about Cintron’s condition. The district court judge found:
During questioning by Frost, Cintron admitted
to snorting a line of heroin earlier that
morning and Frost observed a number of
characteristics that he considered consistent
with heroin use. During the interview
Cintron repeatedly fell asleep between
questions and fell back against the wall or
to the side. Cintron also had difficulty
keeping his eyes open and his speech was
slurred. According to Frost, Cintron
physically appeared “out of it.”
United States v. Cintron, No. 07-10435-NMG, 2009 WL 924423, at *1
(D. Mass. April 1, 2009). Concerned about Cintron’s “inability
to stay awake, slurred speech and lack of balance and
coordination,” id. at *3, the district court nevertheless found
that Cintron had knowingly waived his Miranda rights and denied
Cintron’s motion to suppress his statements.3
3
The district court focused on the facts that Cintron was
capable of answering questions, that he was attempting to broker a
deal, and that Cintron was familiar with the criminal justice
system having been arraigned on 64 charges as an adult and 19
charges as a juvenile.
-5-
In June of 2009, pursuant to the Government’s discovery
obligations, the Assistant United States Attorney sent two
letters to Cintron’s retained counsel notifying him of
inconsistencies in the troopers’ accounts of the arrest which had
emerged during trial preparations. Contrary to Trooper Gaudet’s
account that the gun was protruding from Cintron’s left jacket
pocket, both Trooper Browning and Sergeant Deyermond stated that
they observed the gun in Cintron’s right jacket pocket. Trooper
Gaudet added to his account that after he first observed the gun,
he attempted to enter the driver-side back door to retrieve the
gun and when that was unsuccessful he ran around the car to
assist Sergeant Deyermond.
In July of 2009, Cintron’s retained counsel withdrew
and an assistant federal defender was appointed. In August of
2009, Cintron wrote two letters to the Court in which he claimed
that his retained counsel had filed the motion to suppress
statements without his agreement. Cintron also told the district
judge that he was not under the influence of drugs at the time of
his arrest.
The government sent a third letter on August 21, 2009,
this time to the recently appointed federal defender, indicating
that Sergeant Deyermond, after reviewing reports, recalled that
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he observed the firearm in Cintron’s left jacket pocket.4
On February 25, 2010, the federal defender filed a
motion to reconsider Cintron’s first motion to suppress based on
the changes in the accounts of the police officers. On February
26, 2010, the federal defender filed a second motion to suppress
the firearm. In support of both motions, the federal defender
submitted the various police reports describing the stop, the
affidavit of Trooper Gaudet, the government letters, and the
testimony of Trooper Browning at the hearing on Cintron’s first
motion to suppress. In support of the second motion to suppress,
the federal defender submitted a new affidavit in which Cintron
averred that the gun was in his buttoned right pocket and was not
visible and that the troopers did not discover the gun in his
pocket until after they had frisked him. The federal defender
also submitted photographs of: 1) Cintron’s jacket; 2) a gun
similar to the one possessed by Cintron; 3) the jacket containing
the gun in a pocket lying on a table; and 4) a model wearing the
jacket containing the gun in the pocket. The gun does not
protrude from the pocket in either of the latter two photographs.
The federal defender requested evidentiary hearings on
4
The Court will refer collectively to the three letters from
the Assistant United States Attorney to defense counsel as “the
government letters.”
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both motions. The district court held a non-evidentiary hearing
on the motions on April 15, 2010. On April 26, 2010, the
district court issued a memorandum and order denying the motions
and concluding that no evidentiary hearing was necessary. Not
persuaded by the federal defender’s assertion that retained
counsel had advanced a poor legal theory against Cintron’s
wishes, the district court refused to treat Cintron’s second
affidavit as newly discovered evidence.5 The district court
judge found that “the timing and circumstances” of Cintron’s
second affidavit were so suspect that he declined to credit it
over the officers’ consistent accounts. United States v.
Cintron, 708 F. Supp. 2d 92, 94 (D. Mass. 2010). Finding that
the government letters did not materially alter the troopers’
accounts of the stop, the court found no basis to revisit the
holding that the gun was in plain view before it was seized. The
district court concluded that the appointment of new counsel did
not give Cintron the right to a “fresh start toward suppression”
5
A district court may grant a motion for reconsideration “if
the moving party presents newly discovered evidence, if there has
been an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a manifest
error of law or was clearly unjust.” United States v. Allen, 573
F.3d 42, 53 (1st Cir. 2009). Newly discovered evidence that
requires a district court to reconsider its decision is evidence
that could not “in the exercise of due diligence” have been
presented earlier. Emmanuel v. Int’l Bhd. of Teamsters, Local Union
No. 25,
426 F.3d 416, 422 (1st Cir. 2005)).
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and did not explain why Cintron had waited sixteen months to
contest Trooper Gaudet’s account. Id.
On appeal, Cintron claims that he made a threshold
showing sufficient to place in doubt the troopers’ account that
they saw the gun before they conducted the frisk, and he argues
that the district court abused its discretion by not holding an
evidentiary hearing on Cintron’s second motion to suppress and
his motion to reconsider his first motion to suppress.
Relevant Law
A criminal defendant has no presumptive right to an
evidentiary hearing on a motion to suppress. United States v.
D’Andrea, 648 F.3d 1, 5 (1st Cir. 2011). “Rather, ‘[a] hearing
is required only if the movant makes a sufficient threshold
showing that material facts are in doubt or dispute, and that
such facts cannot reliably be resolved on a paper record. Most
importantly, the defendant must show that there are factual
disputes which, if resolved in his favor, would entitle him to
the requested relief.’” United States v. Francois,
715 F.3d 21,
32 (1st Cir. 2013) (alteration in original) (quoting United
States v. Staula,
80 F.3d 596, 603 (1st Cir. 1996)).
To obtain an evidentiary hearing, a defendant
challenging a warrantless search must make a sufficient threshold
showing that no exception to the warrant requirement applied to
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the search. Allen, 573 F.3d at 51. “The burden is on the
defendant to allege facts, ‘sufficiently definite, specific,
detailed, and nonconjectural, to enable the court to conclude
that a substantial claim is presented.’” United States v.
Calderon, 77 F.3d 6, 9 (1st Cir. 1996)(quoting United States v.
Lewis,
40 F.3d 1325, 1332 (1st Cir. 1994)). “[T]he decision of
whether to conduct an evidentiary hearing is left to the sound
discretion of the district court. On appeal, our review is for
an abuse of that discretion.” United States v. Brown,
621 F.3d
48, 57 (1st Cir. 2010) (internal citation omitted).
Analysis
To obtain an evidentiary hearing on his second motion
to suppress, Cintron was required to demonstrate specific facts
that plausibly suggested that the troopers did not see the gun in
plain view. Allen, 573 F.3d at 51. The district court concluded
that Cintron did not make that threshold showing and that
material facts pertaining to the motion to suppress were not in
dispute. We agree.
A. The Government Letters Were Not Materially
Inconsistent
The district court’s denial of Cintron’s first motion
to suppress the gun relied on the fact that Trooper Gaudet saw
the gun protruding from Cintron’s pocket before he seized it. In
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deciding Cintron’s second motion to suppress and motion for
reconsideration, the district court reasonably concluded that
none of the changes in the troopers’ stories during trial
preparation altered this dispositive fact. Trooper Gaudet
consistently said that he saw the gun in Cintron’s left jacket
pocket when Cintron was getting out of the car. Neither Trooper
Gaudet’s later statement that he tried to open the back driver-
side door before he ran around to the other side of the car nor
Trooper Browning’s recollection that Trooper Gaudet called out
“gun!” when he was on the passenger side of the car undermines
Trooper Gaudet’s recollection that he saw the gun before Cintron
was frisked.
Sergeant Deyermond and Trooper Browning both
corroborated Trooper Gaudet’s recollection that he ran over to
the passenger side to help Sergeant Deyermond pull Cintron out of
the car and grabbed the gun then. As for the confusion about the
location of the gun, Trooper Browning qualified his statement
during trial preparation that he “did not remember exactly” but
that he thought the gun was in the right pocket. Sergeant
Deyermond initially thought the gun was in the right pocket, but
after reviewing the reports, recalled that the gun was in
Cintron’s left pocket. Considering that Cintron’s arrest took
minutes, and the trial preparation occurred nineteen to twenty
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months after the arrest, the inconsistencies in the troopers’
stories were understandable and immaterial.
B. Cintron’s Second Affidavit and Photos
The district court reasonably concluded that Cintron’s
affidavit was untimely and not credible.
1. The Timing and Circumstances
The district court rejected Cintron’s second affidavit
as a last-minute, self-serving change in strategy. Cintron’s
version of the arrest was always available to him, and the
district court made no error in rejecting this account which was
raised so late in the game. See United States v. Allen, 573 F.3d
42, 54 (1st Cir. 2009).
Cintron blames his retained counsel for failing to
contest Trooper Gaudet’s account of the arrest and for pursuing a
futile strategy of seeking to suppress his statements. The
record is insufficiently developed for us to meaningfully review
retained counsel’s strategy and the effectiveness of his
representation, and Cintron has not formally raised an
ineffective assistance of counsel claim. See, e.g., United
States v. Theodore, 354 F.3d 1, 3 (1st Cir. 2003) (“We note that
the almost universal rule . . . is that petitioners cannot raise
ineffective assistance of counsel claims for the first time on
direct review, the concern being that there is often no
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opportunity to develop the necessary evidence where the claim is
first raised on direct appeal.”).
Cintron cites his letters to the district court judge
in August of 2009 as evidence that his retained counsel acted
against his wishes in not presenting Cintron’s account of the
arrest to the district court. In his letters to the judge,
Cintron complains about his retained counsel’s performance, but
he does not claim that the gun was buttoned in his right-hand
pocket and not visible to the police. Cintron never claims that
the police violated his constitutional rights. What he does
claim is that he was innocent.
The federal defender claims that Cintron’s account of
the gun’s seizure has been the same since the day they first met.
But the federal defender came on board after Cintron’s first
attempt at suppression had failed. To point out that Cintron has
been consistent since he learned that his first strategy failed
is very different from saying that Cintron has been consistent
since the date of his arrest. It was reasonable for the district
court to view Cintron’s affidavit with skepticism and to discount
the federal defender’s representation that Cintron’s story has
been consistent throughout their relationship.
The district court is not limited to the four corners
of the defendant’s motions, affidavit, and exhibits in assessing
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the weight to give the defendant’s affidavit. The district court
can rely on information that it has obtained from previous
motions and from other sources, including the defendant’s letters
to the court, in determining whether an affidavit should be
credited. See Awon v. United States, 308 F.3d 133, 141 (1st Cir.
2002) (district court correctly rejected convicted co-defendant’s
post-trial affidavit averring unbelievable story exonerating
defendant because affidavit was “lacking in credibility for
reasons apparent on its face and from the record”); see also
Brown, 621 F.3d at 58-59 (district court appropriately gave
minimal weight to affidavit from defense investigator containing
indirect witness testimony conflicting with consistent officer
testimony).
Cintron’s ability to perceive and remember the seizure
of the gun was suspect. The evidence before the district court,
including the testimony of the drug recognition expert at the
hearing on Cintron’s first motion to suppress, strongly suggested
that Cintron was severely impaired when the gun was seized. The
district court was not required to turn a blind eye to the
testimony that Cintron was difficult to rouse when first
encountered, that he admitted to using heroin that morning, and
that he was showing multiple signs of being under the influence
of heroin. The defendant’s self-serving claim in the August 2009
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letter to the judge that he was not impaired at the time of his
arrest, despite all the evidence to the contrary, only undermined
the credibility and reliability of his second affidavit wherein
he recounted details of his arrest. Here, the district court had
good reason to question Cintron’s ability to perceive his own
arrest and had a basis to doubt Cintron’s credibility in his
second affidavit.
2. The Photographs
Cintron argues that even without his second affidavit,
the photographs of the physical evidence created a material
dispute of fact about whether the police saw the gun in plain
view before they frisked him. But the photographs of the jacket,
which demonstrate that the gun could fit completely within a
buttoned pocket if the person wearing the jacket was standing
upright, do not establish that Trooper Gaudet could not have seen
the gun sticking out of the top of the pocket when Cintron was
draped across the backseat and then roused from the car by
Sergeant Deyermond. The photographs do not create a material
dispute of fact.
CONCLUSION
Even considered cumulatively, Cintron’s evidence was
insufficient to demonstrate that material facts were in dispute
and that he was entitled to an evidentiary hearing on his
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motions. Without credible evidence contradicting Trooper
Gaudet’s consistent account that he saw the gun in plain view,
the district court did not abuse its discretion in denying an
evidentiary hearing on Cintron’s motion to reconsider and second
motion to suppress.
The judgment below is affirmed.
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