U.S. v. Andrade

• Decision Date: 26 August 1996
• Docket Number: No. 95-1883,95-1883
• Parties: UNITED STATES of America, Appellee, v. Louis ANDRADE, Appellant. First Circuit
• Court: U.S. Court of Appeals — First Circuit

Page 9

94 F.3d 9

UNITED STATES of America, Appellee, v. Louis ANDRADE, Appellant.

No. 95-1883.

United States Court of Appeals,

First Circuit.

Submitted July 31, 1996.

Decided Aug. 26, 1996.

Daniel J. Johnedis, on brief, Woburn, MA, for appellant.

Donald K. Stern, United States Attorney, and Ralph F. Boyd, Jr., Assistant United States Attorney, on brief, for appellees.

Before TORRUELLA, Chief Judge, CYR and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

Louis Andrade was convicted of possessing cocaine base with intent to distribute. He was sentenced to 168 months in prison. He appeals from both his conviction and his sentence.

Andrade's main argument is that the evidence seized when the car in which he was riding was stopped by officers from the Boston Anti-Gang Violence Unit should have been suppressed. He says that the ostensible reason for the stop, a traffic violation, was only a pretext to search the car in hope of proving more serious charges. For these charges, he says, there then existed no probable cause or reasonable suspicion. His argument is foreclosed by the Supreme Court's decision in Whren v. United States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), decided after this case was initially briefed. He also argues that the 14.21 grams of cocaine base with which he was caught was so small an amount that it is unreasonable to infer that he had the needed intent to distribute. This argument is without merit. As for Andrade's challenges to his sentence, his argument based on the distinction in severity of sentences between crack cocaine and powder cocaine is foreclosed. That distinction does not permit a downward departure in sentence. There was no error in the enhancement of his sentence for his attempt to shoot one of the arresting officers.

I

We recite the facts as the jury could reasonably have found them. Andrade was a passenger in a car which made an ill-considered and illegal U-turn in front of oncoming traffic on Columbia Road in Boston on February 20, 1994. This maneuver was observed at around 8:00 p.m by Officers Byrne and Linskey of the Anti-Gang Violence Unit. Byrne and Linskey were patrolling the area in an unmarked car driven by Officer Freeman of the same unit. The Unit gathers intelligence on gangs, leading to arrests of gang members in the Roxbury, Mattapan, and Dorchester areas of Boston. The Unit uses motor vehicle violations as a tool to investigate gang activities.

The officers followed the car and saw three adults in the vehicle. They also saw that the car had a broken taillight. As the car slowed to a stop in front of a building on Seaver Street, the officers turned on their wig-wag light and then approached the car on foot. Officer Freeman identified himself and asked the driver, Sandra Wright, for her license, while Officer Linskey detained the front seat passenger, Terrell Andrade (Louis Andrade's brother), who had emerged from the car. As Officer Freeman shone a flashlight into the car, he saw, in the center of the front seat, a plastic bag containing an off-white, rock-like substance which looked like crack cocaine. He leaned into the car and picked up the bag and then signalled to the other officers to handcuff Wright and Terrell Andrade.

Officer Freeman then went to open the right rear passenger door, next to where Louis Andrade was sitting. While Officer Freeman spoke to Andrade, he saw that Andrade was sitting stiffly with his left hand behind his back. Andrade ignored Officer Freeman's several commands that he take his hand from behind his back. Drawing their service pistols, Officers Freeman and Byrne yelled at Andrade to remove his hand from behind his back. Andrade pulled his left hand from behind his back and threw out, onto the street, a bag containing a substance which appeared to be crack cocaine. When Officer Freeman then attempted to handcuff Andrade, Andrade lurched backward into the car and tried to reach down to the floor. As Officer Freeman leaned into the car toward Andrade, he suddenly saw a gun in Andrade's hand. He screamed "gun," pushed himself away from Andrade, saw a flash, and heard a noise. Believing Officer Freeman had been shot (he was not), Officer Byrne fired a single shot at Andrade, hitting him in the leg and ending the confrontation.

Officer Linskey then pulled Andrade out of the car and asked him where the gun was. Andrade denied having a gun, but Sandra Wright yelled "check his ankles; check his ankles." The officers did so and found the gun, not on Louis Andrade's ankle, but on the floor of the car near to where Andrade had been sitting. A spent cartridge was found jammed in the gun's chamber, indicating that the weapon had been fired, and, fortuitously, that no additional rounds could be fired. An upset Sandra Wright continued to scream "the dude in the back shot at a cop; the dude in the back shot at a cop; I could have gotten shot."

Accompanying Louis Andrade on the ride to the hospital, Linskey observed Andrade attempting to remove $260.00, in mostly ten and twenty dollar bills, from his pants pocket. Linskey later found another plastic bag in the same pocket. That bag, like the others, contained cocaine base ("crack"); the two bags connected to Louis Andrade totalled some 14.21 grams in weight. That amount of cocaine is enough for 140 "jums" (doses) or "dime bags."

In a four count indictment, Andrade was charged with possession with intent to distribute cocaine base, with unlawful possession by a convicted felon of a firearm and ammunition, with possession of a firearm bearing an obliterated serial number, and with using a firearm during and in relation to a drug trafficking crime. The jury convicted on the drug possession count under 21 U.S.C. § 841(a)(1) and deadlocked on the firearms counts. The district court denied subsequent motions for judgment of acquittal and for a new trial. Andrade was sentenced to 168 months in prison and four years supervised release. After sentencing, the court dismissed the firearms counts on the government's motion.

II

Andrade makes three attacks on his conviction. He argues that the trial judge erroneously denied his motion to suppress the evidence seized during the "warrantless, pretextual traffic stop of the car in which defendant was a passenger." He also says that the evidence of intent to distribute the drugs was insufficient to support a conviction, and that the thinness of that evidence at least entitles him to a new trial. Although ably briefed, none of these arguments prevails.

A. The Suppression Motion

Andrade filed a motion to suppress the evidence seized during the car stop on the theory that the stop was pretextual. The district court held an evidentiary hearing and determined the stop was not pretextual but was made, as the officers said, to investigate why the car had made a "sharp, harsh U-turn" into oncoming traffic. The court later modified its ruling to note that there was evidence to suggest a second motive for the stop, but that under the objective test of United States v. Miller, 589 F.2d 1117 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979), any mixed motive was irrelevant. Our review of the ultimate conclusion as to whether the Fourth Amendment was violated is de novo. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996).

In support of his claim that the motion to suppress should have been granted, Andrade relies on a theory firmly rejected by the Supreme Court in Whren. In Whren, the Supreme Court affirmed the denial of a motion to suppress drugs seized when the police stopped a car for a traffic violation. The Court held that the temporary detention of a motorist upon probable cause to believe the traffic laws have been violated does not transgress the Fourth Amendment's prohibition on unreasonable seizures, even if the officer would not have stopped the motorist absent some additional law enforcement objective. Whren, --- U.S. at ----, 116 S.Ct. at 1774. Because the Fourth Amendment allows certain actions to be taken in certain circumstances, regardless of motives, the Court rejected any inquiry into the officers' subjective intent or into what a "reasonable officer" would have done in similar circumstances. Id. at ----, 116 S.Ct. at 1775. The Court thus foreclosed any argument that ulterior motives can invalidate an otherwise justified traffic stop. Id. at ----, 116 S.Ct. at 1774.

Here, the illegal U-turn plainly provided probable cause to stop the car for violating the traffic laws, and Andrade does not argue otherwise. Under Whren, the inquiry stops there, as does Andrade's appeal on this point. ¹ Id.; see also United States v. Abernathy, 83 F.3d 17, 19 (1st Cir.1996) (officers on undercover investigatory narcotics detail may lawfully make traffic violation stop).

B. Evidence of Intent to Distribute

Andrade's remaining attacks are premised on his contention that the evidence did not show that he had an intent to distribute the cocaine base, even if the evidence were sufficient to show that he did possess it for personal use. He challenges the district court's denial of both his Rule 29 motion for a judgment of acquittal and his Rule 33 motion for a new trial.

1. Motion for Judgment of Acquittal

In a sufficiency challenge, we determine whether, drawing all reasonable inferences in favor of the prosecution, a rational jury could find guilt beyond a reasonable doubt. United States v. Luciano-Mosquera, 63 F.3d 1142, 1149 (1st Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1879, 135 L.Ed.2d 174 (1996).

It would, of course, be unusual for there to be direct evidence of a defendant's intent to distribute the drugs in his possession where the defendant is not observed dealing drugs but instead is merely found with the drugs. As a result, juries, and courts, have to decide what inferences may be reasonably drawn from the available circumstantial evidence. See United...