U.S. v. Fornia-Castillo

• Decision Date: 27 May 2005
• Docket Number: No. 03-1070.,No. 03-1069.,03-1069.,03-1070.
• Parties: UNITED STATES of America, Appellee, v. Luis B. FORNIA-CASTILLO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

408 F.3d 52

UNITED STATES of America, Appellee, v. Luis B. FORNIA-CASTILLO, Defendant, Appellant.

No. 03-1069.

No. 03-1070.

United States Court of Appeals, First Circuit.

Heard September 15, 2004.

Decided May 27, 2005.

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G. Richard Strafer, with whom Luis Fornia-Castillo, pro se ipso, was on brief, for appellant.

Edwin O. Vázquez-Berrios, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabón, Assistant United States Attorney, were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.^*

Defendant-appellant Luis B. Fornia-Castillo was indicted, tried, and convicted on a single count of conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846. He then sought to dismiss, on double jeopardy grounds, a second indictment charging him with another count of conspiracy under 21 U.S.C. § 846 and four substantive counts of possession with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and aiding and abetting others in those offenses in violation of 18 U.S.C. § 2. After the government dismissed the second conspiracy count, the court denied Fornia's motion to dismiss the second indictment. Fornia then pled guilty to each of the four remaining substantive offense counts, expressly reserving his right to appeal those convictions on double jeopardy grounds. Fornia was sentenced in separate hearings to consecutive terms of 210 months' imprisonment for the conspiracy conviction and 365 months' imprisonment for the four substantive counts (to run concurrently to each other), for a total term of imprisonment of approximately 48 years. Fornia appeals his convictions and sentences.

With respect to his conspiracy conviction, Fornia argues that: (1) the trial court erroneously denied his motion to suppress evidence obtained in violation of his Fourth Amendment right to protection against unreasonable searches and seizures and his Fifth Amendment right to protection against self-incrimination; (2) his pre-trial counsel rendered constitutionally defective representation at his suppression hearing in violation of his Sixth Amendment right to effective assistance of counsel; and (3) the government violated his Fifth Amendment right to indictment by a grand jury by constructively amending the indictment after its presentment to the grand jury. With respect to his pleas to the substantive offenses, Fornia argues that the prosecution was barred by the Double Jeopardy Clause of the Fifth Amendment because the government failed to exercise due diligence either by seeking a superseding indictment to the initial conspiracy charge or by promptly joining both cases for prosecution.¹ Fornia also assigns numerous errors to his sentences, including the claim that the court imposed mandatory sentence enhancements in each case based solely on judicial fact-finding, thereby increasing the maximum sentence otherwise authorized by jury-found or admitted facts in violation of United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

After careful consideration of each of Fornia's claims, tested against the record on appeal, we affirm Fornia's convictions. Because we are not "convinced that a lower sentence would not have been imposed" under a post-Booker, non-mandatory Guidelines regime, United States v. Vázquez-Rivera, 407 F.3d 476, 490, 2005 WL 1163672 at *10, (1st Cir.2005), we vacate all of the sentences and remand both cases for resentencing.

I. BACKGROUND

We recount the facts, consistent with record support, in the light most favorable to the jury's guilty verdict on the conspiracy charge, United States v. Gonzalez-Maldonado, 115 F.3d 9, 12 (1st Cir.1997), and as found by the district court after a suppression hearing, United States v. Ngai Man Lee, 317 F.3d 26, 30 (1st Cir.2003). We reserve further details for our analysis of Fornia's individual claims.

On the afternoon of September 9, 1999, Drug Enforcement Administration ("DEA") Task Force agents conducting visual surveillance of suspected drug conspirators outside a furniture store witnessed several people entering and exiting the store with small boxes and bags that the agents had reason to believe contained illegal drugs or drug proceeds.² Later that day, two suspects left the store carrying a large bag, which they placed in the trunk of a car. Agents followed the two men as they drove the car from the furniture store to a bakery, where they met a third man unknown to the agents, who was later identified as Fornia. The agents observed the men transferring the contents of the car trunk to the trunk of Fornia's car, and began following Fornia as he drove away from the bakery alone.

At around 7:45 PM, agents instructed a member of the Task Force who was a local police officer in uniform to pull Fornia over under the pretense of investigating a report of a car stolen from a nearby shopping center whose description matched Fornia's car. After identifying Fornia through his driver's license and car registration, the officer obtained Fornia's consent to search the car, including a garbage bag in the trunk, which contained several smaller bags and a shoe box, all filled with large amounts of cash. Once the officer saw the cash, he handcuffed Fornia and frisked him, finding no weapon.³ While Fornia was handcuffed, the officer signaled for assistance from two local police officers who were not part of the Task Force but who happened to be patrolling the area. Fornia remained handcuffed until another Task Force member arrived on the scene, pretending to be another police officer in charge of security at the shopping center parking lot, and ordered the handcuffs removed.

The newly arrived agent informed Fornia that the money would have to be turned over either to the tax authorities, who would take the cash, deduct a portion, and return the remainder to Fornia by check, or, in the alternative, to the DEA. Fornia stated several times that he would prefer to turn the money over to the tax authorities, observing that their procedure resembled money laundering. Instead, the officers awaited the arrival of DEA agents, all of whom were members of the Task Force investigating the suspected drug conspiracy. When the DEA agents arrived, they told Fornia that he was not under arrest for carrying a large quantity of cash. The agents questioned Fornia about his recent whereabouts and asked where he was going with the large amount of cash. Fornia did not mention that he had been at the bakery, but replied that he had bought coffee at the shopping center and that he was bringing the money to his mother-in-law's house to be stored. The agents then seized the money and asked Fornia to go to the DEA office for further questioning. Fornia agreed and drove his own car to the DEA office, where he answered additional questions. Fornia was then given a receipt for the cash and left the DEA office.

On April 26, 2000, a federal grand jury returned a sealed indictment ("I96") charging 26 named individuals, including Fornia, and unknown co-conspirators with a solitary count of conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846 during a time period beginning "not later than the summer of 1997" and continuing through the date of the indictment. The indictment assigned each named individual a number and described his or her alleged role within the conspiracy. Fornia, #21, was included among # 16-23 as "transporters of drug[s] or money."⁴ The indictment also alleged 74 overt acts, "among others," committed in furtherance of the conspiracy. Fornia's name appeared only once in the list of overt acts, in paragraph 50, which alleged that "[o]n September 9, 1999, (2) Fernando TORRES-Fernandez and (20) Osvaldo VILLEGAS-Rivera delivered to (21) Luis FORNIA-Castillo approximately Two Hundred Eighty-One Thousand and Nine Hundred Twenty-Six Dollars ($281,926.00) of drug proceeds" (emphasis omitted).

The indictment was unsealed on May 1, 2000, and Fornia was arrested on a warrant that day. He was later released on bail. On December 27, 2000, Fornia moved to suppress the evidence, including his statements, obtained as a result of the September 9, 1999 stop and search of his car and his subsequent interview at the DEA office. After an evidentiary hearing before Judge Casellas on February 5-6, 2001, the motion was denied.⁵ By March 2001, each of Fornia's 25 co-defendants in I96 had pled guilty.

On August 1, 2001, a federal grand jury returned a sealed indictment ("I528") charging 15 named individuals, including Fornia and one other person who had also been indicted in I96,⁶ and others unknown, with conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846 during a time period beginning "on or about the end part of 1996" and continuing through the date of the indictment. As in I96, all of the conduct alleged against Fornia in I528 took place no earlier than "the summer of 1997." I528 identified Fornia as #1, "owner of drugs."⁷ The indictment also charged Fornia with four additional counts alleging substantive offenses in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and aiding and abetting others in those offenses in violation of 18 U.S.C. § 2. The substantive offenses were also alleged as overt acts #4-6 and #10 committed in furtherance of the conspiracy charged in Count One.

Specifically, Count Two alleged that Fornia, indicted co-conspirators # 2 and #6, and an unindicted co-conspirator possessed with intent to distribute approximately 50 kilograms of cocaine "[o]n or about the end part of 1997." Count Three alleged that Fornia, the same indicted co-conspirators, and an unindicted co-conspirator possessed with intent to distribute...