United States v. Vázquez

• Decision Date: 18 July 2013
• Docket Number: No. 12–1203.,12–1203.
• Citation: 724 F.3d 15
• Parties: UNITED STATES of America, Appellee, v. Kathy VÁZQUEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

724 F.3d 15

UNITED STATES of America, Appellee,

v.Kathy VÁZQUEZ, Defendant, Appellant.

No. 12–1203.

United States Court of Appeals,

First Circuit.

July 18, 2013.

Allison J. Koury, by appointment of the court, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief for appellee.

Before TORRUELLA, THOMPSON and KAYATTA, Circuit Judges.

KAYATTA, Circuit Judge.

Kathy Vázquez sold crack cocaine to a confidential informant. A police search of her home later turned up powder cocaine, cash, and drug-dealing paraphernalia. Based on this evidence, Vázquez was convicted of three drug-related offenses and sentenced to 78 months' imprisonment.

On appeal, Vázquez challenges three different steps in the process that brought her to a prison cell. First, she claims that her consent to the FBI's warrantless search of her home was secured by a false claim that a lawful, warrantless search of her home would ensue without her consent, rendering the evidence discovered through that search inadmissible at trial. Second, she argues that the district court should have instructed the jury on the defense of duress. Finally, she asserts that the district court miscalculated her sentence under the United States Sentencing Guidelines by assigning her responsibility for too much crack cocaine, as well as for a gun possessed by her co-conspirator before the beginning of the charged conspiracy.

We find that the district court erred in failing to determine whether there were reasonable grounds to support the claim made to Vázquez that a lawful, warrantless search of her home would ensue without her consent. Otherwise, we reject Vázquez's arguments on appeal. As explained more fully below, we therefore affirm Vázquez's conviction on two of the three offenses, vacate her conviction on the third, and remand the case for further proceedings consistent with this opinion.

I. Background

In the fall of 2007, the Federal Bureau of Investigation received a tip from a confidential informant that Vázquez and her boyfriend, Bernado “Junito” Soto, were involved in the distribution of illegal drugs. On December 5, 2007, the FBI arranged for that informant to make a controlled buy of crack cocaine from Vázquez and Soto. The informant phoned Vázquez and agreed to meet her inside a local Walgreens to purchase 14 grams of crack cocaine from her, pre-bagged for resale. The sale occurred as planned, while Soto waited outside. After Vázquez and the informant exited the store together, the informant spoke to Soto for a few minutes about what Soto wanted done with a gun that he had previously loaned to the informant's boyfriend.

The next day, the informant made a second controlled buy of another 14 grams of crack cocaine from Vázquez and Soto, this time at Vázquez's home. The three chatted about various aspects of their drug dealing activities, including a scheme to smuggle liquid cocaine from the Dominican Republic into the United States.

The last controlled buy was supposed to occur on January 16, 2008. The informant again visited Vázquez's home, seeking to purchase crack cocaine, but this time Vázquez and Soto told her that they only had powder cocaine in stock and that it was not good for cooking into crack.

Later that same day, New Hampshire Probation and Parole, working in coordination with the FBI, arrested Soto on a parole violation in a parking lot near a gym in Nashua. Thereupon, the FBI sought and received Vázquez's permission to search her home, where Soto had been staying. The search turned up two plastic bags of powder cocaine; a number of unused plastic bags; approximately $4,620 in cash; a Western Union receipt dated three days prior indicating that Vázquez had sent money to the Dominican Republic; a digital scale; two kinds of cutting agent used to prepare cocaine for sale; and a filter for cutting cocaine.

Vázquez was subsequently indicted on four separate counts: (I) Conspiracy to Distribute Cocaine and Cocaine Base (crack) beginning on December 5, 2007, and continuing through January 16, 2008; (II) Distribution of Cocaine Base on December 5, 2007; (III) Distribution of Cocaine Base on December 6, 2007; and (IV) Possession of Cocaine with Intent to Distribute on January 16, 2008. See21 U.S.C. § 841(a)(1) & 846 (2006). Prior to trial, Vázquez moved to suppress the evidence seized in the search of her home, pressing the argument that her consent had been secured by a false claim of authority to search. After an evidentiary hearing, the district court denied her motion to suppress. Vázquez was ultimately convicted on the first, third, and fourth counts, and was acquitted on the second count.

At sentencing, the district court calculated Vázquez's recommended sentence under the United States Sentencing Guidelines by attributing to her approximately 100 grams of crack cocaine, which gave her a base offense level of 26. SeeU.S.S.G. § 2D1.1(c)(6). The court also found that a firearm was possessed in connection with the charged conspiracy and accordingly enhanced Vázquez's base offense level by two, raising it to 28. See id. at § 2D1.1(b)(1). In combination with Vázquez's criminal history category of I, these findings yielded a recommended sentence of 78 to 97 months. The court sentenced Vázquez to a 78–month term of imprisonment.

II. Analysis

A. The Search of Vázquez's Home

The Fourth Amendment forbids law enforcement from searching a suspect's home without a warrant unless the search falls under “one of the ‘few specifically established and well-delineated exceptions' to the warrant requirement.” United States v. Forbes, 181 F.3d 1, 5 (1st Cir.1999) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Consent to the search is one such exception. See id.

For consent to a search to be valid, however, the government must prove by a preponderance of the evidence that the consent was uncoerced. See United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir.2008). The presence of coercion is a question of fact based on the totality of the circumstances, including “the consenting party's knowledge of the right to refuse consent; the consenting party's possibly vulnerable subjective state; and evidence of inherently coercive tactics, either in the nature of police questioning or in the environment in which the questioning took place.” United States v. Twomey, 884 F.2d 46, 51 (1st Cir.1989) (citing Schneckloth, 412 U.S. at 227, 229, 247, 93 S.Ct. 2041). Importantly, courts must also consider “any evidence that law enforcement officers' ... misrepresentation prompted defendant's acquiescence to the search.” Vanvliet, 542 F.3d at 264–65 (citing Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)).

As we will explain, this is a case in which the record is clear that a representation by the FBI prompted Vázquez's acquiescence to the search. Specifically, the FBI obtained Vázquez's consent to search her home by telling her that a warrantless search of her home would be conducted without her consent. The central questions thus posed for the district court were whether the representation was correct and, if not, whether the consent was invalid and the search unlawful. In answering these rather difficult questions, the district court found itself unable to determine whether the representation used to procure Vázquez's consent was false. Nevertheless, the court ruled that, as long as the FBI agents acted in “subjective good faith” in claiming that a warrantless search could be conducted without Vázquez's consent, her consent validated the search.

On appeal from that ruling, we review the district court's conclusions of law de novo and its findings of fact for clear error. See Ornelas v. United States, 517 U.S. 690, 696–98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In so doing, we find that reasonableness, rather than subjective good faith, is the controlling legal standard; consent procured by a claim that a search will ensue anyhow is valid only if the claim is based on a reasonable assessment of the facts under the applicable law. Because the district court did not determine whether the FBI agents' representation was correct based on a reasonable assessment of the facts, because the record does not dictate an answer to this question, and because admission of the results of the search at trial was not harmless as to Count IV, remand is required. Our reasoning follows.

1. Procuring Vázquez's Consent

Once Soto was arrested, two FBI agents dressed in plain clothes approached Vázquez, identified themselves, and asked if she would have a cup of coffee with them at a nearby Dunkin' Donuts. Neither agent displayed firearms or handcuffs, touched Vázquez, or told her that she was under arrest. Vázquez agreed to join them for coffee.

Inside the Dunkin' Donuts, the agents ordered Vázquez a cup of coffee and allowed her to use the restroom unescorted while they secured a table. Vázquez later joined the agents at the table. She did not appear upset or unsettled. One of the agents asked Vázquez for her cooperation in their investigation, explaining that Soto had been arrested for a parole violation.

As it became clear that Vázquez was not willing to cooperate with the investigation, the agents changed tack and attempted to obtain Vázquez's consent to a search of her home. Vázquez asked the FBI agents if they had a search warrant for her home. In response, they told her that, while they did not have a warrant, New Hampshire Probation and Parole had the authority to search her home without her consent, and was going to do so. The agents based that assertion on information communicated to them by New Hampshire Probation and Parole, which had informed the FBI earlier in the day that it intended to search Soto's residence—assumed to be the same as Vázquez's—after his arrest.¹

The FBI agents explained to Vázquez that if she consented to an...