U.S. v. Goncalves

• Decision Date: 28 April 2011
• Docket Number: No. 10–1367.,10–1367.
• Citation: 642 F.3d 245
• Parties: UNITED STATES of America, Appellee,v.Pedro Michael GONCALVES, a/k/a Mike Goncalves, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

642 F.3d 245

UNITED STATES of America, Appellee,

v.Pedro Michael GONCALVES, a/k/a Mike Goncalves, Defendant, Appellant.

No. 10–1367.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 2010.Decided April 28, 2011.

George J. West with whom George J. West & Associates was on brief, for appellant.Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, and Sandra R. Hebert, Assistant United States Attorney, were on brief, for appellee.Before BOUDIN, STAHL and HOWARD, Circuit Judges.BOUDIN, Circuit Judge.

Pedro Michael Goncalves appeals from his conviction on drug and gun counts and from his sentence. The appeal presents two issues of some significance—one relating to the search of a car parked in a driveway and the other to the Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124 Stat. 237 2—and a host of other claims that require little time to resolve. We begin with a bare sketch of the background events and proceedings, reserving factual detail for the discussion of specific claims.

In February 2006, a confidential informant told Scott Sullivan—a Pawtucket Police Detective working with a joint FBI/Rhode Island state police task force—that Goncalves was selling large amounts of crack cocaine in the Providence and Pawtucket areas. The informant reported that Goncalves used a third-floor apartment at 83–85 Pomona Avenue in Providence to store and distribute crack; kept additional crack in his bedroom at his mother's house at 406 West Avenue in Pawtucket; used a white 1998 Lincoln Continental for drug deliveries; and was armed with a semi-automatic handgun.

Sullivan conducted surveillance and record checks in March and April 2006 to verify the informant's information. He confirmed that Goncalves regularly visited the Providence apartment; that the white Lincoln (registered to his girlfriend Julia Baptista) was regularly parked there; and that Goncalves visited his mother's Pawtucket house and used that address for his cell phone subscription. Sullivan also discovered that Goncalves had a 2000 conviction for carrying a concealed weapon and a 2003 arrest and still-pending state charge for cocaine trafficking, and that police had found a large amount of cash in Goncalves' Pawtucket bedroom in an unrelated 2003 investigation.

In March and April 2006, Sullivan oversaw two controlled purchases by the informant of crack cocaine from Goncalves. Goncalves drove the Lincoln to the first purchase, and the second purchase occurred within walking distance of the Providence apartment. Based on his corroboration of the informant's information and evidence from the second purchase, Sullivan obtained warrants authorizing searches of the Providence apartment, the Pawtucket house, and Goncalves' person.

On May 3, 2006, Sullivan planned to make a traffic stop of Goncalves in his car after he left the Providence apartment; however, Goncalves noticed the surveillance as he drove away and, ignoring red lights and reaching speeds of 100 miles per hour, led the police on a high-speed chase through various streets and on Interstate 95. Reaching his mother's house in Pawtucket, he crashed the car in her driveway, locked the driver's door, ran, and was apprehended. On searching Goncalves, police found $1,081 in cash and two cell phones—one in the name of “Eugene Fernandes” [sic] (an associate of Goncalves)—but no car keys, drugs, or gun. In the Lincoln, police discovered hidden in the gas tank cap 65.43 grams of powder cocaine and hidden under the hood a loaded and cocked .45 caliber semi-automatic pistol. In Goncalves' bedroom in the Pawtucket house, police found two bags of crack cocaine, totaling 10.43 grams, and a cardboard box addressed to him containing over ninety needles and syringes. In the Providence apartment, police found in the kitchen pantry and cupboards 92.43 grams of crack cocaine, a small digital scale, chemicals, and other materials useful in making and selling crack; they found elsewhere in the apartment papers and photographs connecting Goncalves to the apartment and to Fernandez.

Goncalves was indicted on five counts: three for possession with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2006), relating to the crack found in the Providence apartment, the crack found in the Pawtucket house, and the powder cocaine found in the Lincoln, and two counts relating to the gun found in the Lincoln—being a felon in possession, 18 U.S.C. § 922(g) (2006), and gun possession in furtherance of a drug crime, id. § 924(c). After failing in a motion to suppress the evidence, Goncalves was tried, rapidly convicted by a jury on all five counts, and sentenced (as described below). He now appeals.

Goncalves challenges the sufficiency of the government's case on all of the charges, pointing to evidence that the Providence apartment was rented in Fernandez' name and paid for and used by Fernandez and a man named “Mike” (the latter name, however, also used by Goncalves), and that the car belonged to Baptista. As for the crack cocaine found in the Pawtucket house, Goncalves admitted ownership but said that it was for personal use. These are appropriate jury arguments, but the adverse evidence is so powerful that a rational jury could reasonably and readily convict on all five counts.

The bare bones of the adverse evidence have already been set forth: the association of Goncalves with both premises where drugs and drug-related items were found, his use of the Lincoln and the presence of drugs and a weapon concealed within, and his flight from arrest. And there was considerably more evidence filling in the chinks.¹ Whether any single event in isolation would convict him of any one of the charges might be debated; but the ensemble of pieces fit together and the jury could rationally conclude that all of the drugs belonged to Goncalves and were part of his trade.

Nor was there any difficulty in the jury's inference that the gun under the hood belonged to Goncalves and was kept in aid of his drug dealing. The car was used by him for drug dealing, guns are a regular accessory in drug dealing, and this one was wedged under the hood—loaded and cocked—where it could be retrieved with a single movement once the hood was popped open. See United States v. Robinson, 473 F.3d 387, 400 (1st Cir.2007). His flight from the police and his locking the car and apparently tossing away the key supported the inference that drugs or guns—here, both—were knowingly concealed within.

This brings us to Goncalves' claim that the gun and powder cocaine obtained in the search of the Lincoln should have been suppressed. Suppression would have blocked both gun convictions and one of the drug counts, and it would have barred evidence, useful if not essential, for the other two drug counts. Sullivan's warrants covered the searches of the Providence apartment and Pawtucket house, but they did not include the vehicle. A search presumptively requires a warrant, Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) (per curiam), but as usual there are exceptions—actually, a great many of them. See generally 2 W. LaFave, Search and Seizure § 4.1(b), at 446–51 (4th ed. 2004).

In this case, the relevant exception is for searches of automobiles. Reaching back to Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), current law is that “a search [of a vehicle] is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The question is whether probable cause exists to believe that a vehicle contains contraband or evidence of criminal activity. California v. Acevedo, 500 U.S. 565, 579, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); see also Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1721, 173 L.Ed.2d 485 (2009).

The district court held that there was probable cause to believe that evidence of drug dealing would be found in the car, which the police knew was regularly used by Goncalves and had in fact been used for a prior drug delivery to the informant superintended by the authorities. Further, Sullivan had been told by the previously reliable informant that Goncalves was selling crack in Providence and Pawtucket, possessed a handgun, and used the Lincoln to make drug deliveries. The high-speed chase lent additional support but none is needed.

Goncalves argues that even if the car's interior were searchable, no probable cause justified searching the engine compartment and gas cap, where the handgun and cocaine were found. But “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Wyoming v. Houghton, 526 U.S. 295, 301, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (quoting Ross, 456 U.S. at 825, 102 S.Ct. 2157, and adding emphasis). Sullivan testified as to the use of such hiding places by drug dealers, and common sense would suggest this possibility anyway.

On appeal, Goncalves for the first time makes new arguments for suppression not presented at the district court suppression hearing. These are forfeited, of course, Fed.R.Crim.P. 12(b)(3), (e); United States v. Torres, 162 F.3d 6, 11 (1st Cir.1998), cert. denied, 526 U.S. 1057, 119 S.Ct. 1370, 143 L.Ed.2d 530 (1999), but the forfeiture may be forgiven where plain error exists under United States v. Olano, 507 U.S. 725, 731–32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See United States v. St. Pierre, 488 F.3d 76, 80 n. 2 (1st Cir.2007).

One new argument is that the police created a dangerous situation by allowing Goncalves to drive off in the Lincoln (and so to flee at high speed when he sought to evade the police) and that therefore the fruits of this tactic should be banned on public policy grounds. Sullivan...