U.S. v. Cleveland

• Decision Date: 06 December 1996
• Docket Number: Nos. 96-1043,96-1128 and 96-1659,96-1669,D,GRAY-SANTAN,s. 96-1043
• Citation: 106 F.3d 1056
• Parties: UNITED STATES of America, Appellee, v. Donald E. CLEVELAND, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ramon E. VASQUEZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Enriqueefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1056

106 F.3d 1056

UNITED STATES of America, Appellee, v. Donald E. CLEVELAND, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Ramon E. VASQUEZ, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Enrique GRAY-SANTANA, Defendant, Appellant.

Nos. 96-1043, 96-1669, 96-1128 and 96-1659.

United States Court of Appeals, First Circuit.

Heard Dec. 6, 1996.

Decided Feb. 18, 1997.

Inga S. Bernstein and John H. Cunha, Boston, MA, by Appointment of the Court, with whom Norman S. Zalkind, Zalkind, Rodriguez, Lunt & Duncan and Salsberg, Cunha & Holcomb, P.C. were on consolidated briefs, for defendants-appellants Enrique Gray-Santana and Donald E. Cleveland.

Oliver C. Mitchell, Jr., Boston, MA, with whom Donnalyn B. Lynch Kahn and Goldstein & Manello, P.C. were on brief for defendant-appellant Ramon E. Vasquez.

Andrea Nervi Ward, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on briefs, for the United States.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOWNES, Senior Circuit Judge.

CAMPBELL, Senior Circuit Judge.

Ramon E. Vasquez appeals from his conviction by a jury for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 and for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841. He contends that the district court erred in denying his motion to suppress certain physical evidence and in omitting "hesitate to act" language from its reasonable doubt instruction.

Enrique Gray-Santana and Donald Cleveland, who were Vasquez's co-defendants, pleaded guilty to attempting to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a) and to carrying or using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). As their guilty pleas permit, they now appeal from the district court's denials of their motions to suppress and motions in limine. They also appeal from the district court's denial of relief from their § 924(c)(1) convictions for carrying or using a firearm in relation to a drug crime. They argue that their guilty pleas and convictions should be invalidated under Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), a decision handed down by the Supreme Court shortly after acceptance of their guilty pleas.

I. Background

Most of the facts are not in dispute. Gray-Santana ("Gray"), a resident of New York City, arranged to secure five to eight kilograms of cocaine from co-defendant Juan Rodriguez (not a present appellant). Gray intended to sell the cocaine through other contacts he had in Boston, so he arranged to take delivery in Boston.

On the morning of October 18, 1994, Gray travelled by bus to Boston, planning to meet Cleveland. Cleveland picked Gray up in a rented white Mazda 929 he had borrowed from a friend and took him to his house. There, Cleveland and Gray placed three loaded handguns inside a Louis Vuitton duffel bag and put the bag inside the Mazda's trunk. The two planned to use the guns to rob their suppliers of their cocaine. At around 4 p.m., Cleveland and Gray were paged by Rodriguez. They then left in the Mazda to meet Rodriguez in the Symphony Hall area of Boston.

At this time, the Drug Enforcement Administration was investigating one Juan Pagan. The DEA had information that Pagan was shipping large amounts of cocaine from Puerto Rico to New England. On October 17, 1994, heightened phone activity led DEA Agents to begin physical surveillance, including videotaping, of the Connecticut apartment complex where Juan Pagan resided. Around noon on October 18, 1994, two cars arrived at the complex. The first was a Lexus, driven by William Acosta with Vasquez in the back seat. The second was a Lincoln, driven by Rodriguez.

After the cars parked, Rodriguez handed Acosta a black bag and then Acosta took the bag up to Pagan's apartment. Vasquez, carrying a cellular phone, got out of the Lexus and sat with Rodriguez in the Lincoln. After ten or fifteen minutes, Acosta came back and spoke to Vasquez, prompting Vasquez and Rodriguez to leave the complex in a brown Oldsmobile driven by one Jorge Quinones. An hour or so later, Vasquez returned in the Oldsmobile, followed by Rodriguez in a white Isuzu Trooper.

The DEA had received information from two confidential sources that Pagan used a white Isuzu Trooper in his drug operations. These informants had also told the DEA that some of Pagan's vehicles had hidden compartments used to hold drugs. One of the informants had stated that Pagan's white Isuzu Trooper had such a hidden compartment under the rear seat.

After the Isuzu arrived, Acosta and Rodriguez were observed examining its back seat area. Acosta then left, driving the Lexus with Vasquez in the back seat. Rodriguez followed them in the Isuzu. The two cars drove to Boston on major highways, staying close to 55 miles per hour. DEA agents followed them the entire way.

After the caravan arrived in the Symphony Hall area of Boston, Acosta and Rodriguez parked the cars. Acosta then used the Lexus to guide Cleveland and Gray, who had arrived in the Mazda, to where the Isuzu was parked. Acosta drove away, and Vasquez was next observed sitting in the back seat of the Mazda. Gray exited the Mazda and got into the Isuzu. Vasquez got into the front seat of the Mazda.

The two cars began to drive off. At this point, the DEA agents blocked them. The agents ordered the occupants of both cars to exit their vehicles and handcuffed them. The agents then moved the suspects and their cars out of traffic to a nearby parking lot.

The agents searched the Isuzu and found six kilograms of cocaine in a concealed compartment underneath the back seat. They then searched the Mazda and found the bag in the trunk containing the three guns, rope and duct tape. At that point, the four men were told they were under arrest.

A few hours after his arrest, while he was in custody, Gray gave a statement to DEA agent Bruce Travers confessing to participation in the events described above.

Vasquez filed a motion to suppress the physical evidence found on his person at the time of his arrest. The district court denied his motion. Vasquez was tried by a jury and convicted of conspiracy to possess cocaine with intent to distribute and of possession of cocaine with intent to distribute. The court sentenced him to 121 months in prison.

Cleveland and Gray eventually pled guilty to attempting to possess cocaine with intent to distribute and to carrying or using a firearm during and in relation to a drug trafficking crime, subject to their right to appeal any adverse ruling by the district court on their motions to suppress physical evidence and to suppress Gray's post-arrest statement. The district court denied their motions and sentenced each of them to 180 months in prison and 60 months of supervised release. ¹ After the Supreme Court came down with its Bailey decision, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472, Cleveland and Gray moved in the district court for relief from the conviction for carrying or using a firearm in relation to a drug trafficking crime. The court denied that motion.

II. Vasquez

A. The Search of Vasquez's Person:

In his first point of error, Vasquez argues that the district court erred in denying his motion to suppress the physical evidence the agents found on his person. This included a pager, address book, business cards, and notes tying Vasquez to the other defendants. He contends that a wrongful de facto arrest occurred when he was initially ordered out of the Mazda and handcuffed. (Only later was Vasquez told he was under arrest and thereafter searched, by which time the cocaine had been discovered in the Isuzu.) Because the initial de facto arrest was allegedly without probable cause, Vasquez argues that it was illegal and that it tainted all subsequent events, causing the later search of his person to violate the Fourth Amendment.

The district court held, however, and we agree, that the agents had probable cause to arrest Vasquez at the time they ordered him out of the Mazda and handcuffed him. Accordingly, regardless of whether the arrest occurred then or later, the arrest was legal and the subsequent search of his person was proper. "[I]t is well established that '[i]f an arrest is lawful, the arresting officers are entitled to search the individual apprehended pursuant to that arrest.' " United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir.) (quoting United States v. Uricoechea-Casallas, 946 F.2d 162, 165 (1st Cir.1991)), cert. denied, 513 U.S. 870, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994).

"Law enforcement officers may effect warrantless arrests provided that they have probable cause to believe that the suspect has committed or is committing a crime." United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir.1995) (citing United States v. Watson, 423 U.S. 411, 416-18, 96 S.Ct. 820, 824-25, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 862-63, 43 L.Ed.2d 54 (1975)). "[The government] need only show that, at the time of the arrest, the facts and circumstances known to the arresting officers were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense." Torres-Maldonado, 14 F.3d at 105. See also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964).

"Of course, probable cause must exist with respect to each person arrested, and 'a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.' " Martinez-Molina, 64 F.3d at 726 (quoting Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979)). "[C]ases in which courts find that probable cause exists generally involve substantially more than a momentary,...