U.S.A v. Gonzalez, No. 08-2578.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: LYNCH
• Citation: 609 F.3d 13
• Parties: UNITED STATES of America, Appellee,v.Jesus GONZALEZ, Defendant, Appellant.
• Docket Number: No. 08-2578.
• Decision Date: 23 June 2010

609 F.3d 13

UNITED STATES of America, Appellee,
v.
Jesus GONZALEZ, Defendant, Appellant.

No. 08-2578.

United States Court of Appeals,
First Circuit.

Heard May 6, 2010.
Decided June 23, 2010.

609 F.3d 14

COPYRIGHT MATERIAL OMITTED

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Susan E. Taylor for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, and Sandra R. Herbert, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

This case demonstrates several patterns in urban drug dealing: the shipment of packages of large quantities of drugs through reputable carriers, here DHL; the use of largely empty apartments by drug conspirators as drug drops to which the shipments are addressed; and police who pretend to be carrier employees, make deliveries, and arrest those who take control of the package at the apartments. The defendant, Jesus Gonzalez, convicted of conspiring to distribute and possessing with the intent to distribute cocaine and marijuana, tries to take advantage of this pattern to argue the court erred in not suppressing statements and evidence from this sequence, including from a search of the apartment to which his female co-conspirator consented. Gonzalez is mistaken.

Gonzalez also made the mistake of committing perjury in the course of the suppression hearing. He ended up with a two-level enhancement to his sentence, from which he appeals. We affirm his conviction and sentence.

I.A Facts

We describe the facts as the district court found them from the suppression hearing. The court relied on the testimony of three police officers-Detectives Ruggiero and Sanzi and Sergeant Rave-and Gonzalez's consistent testimony. We also note inconsistent testimony by Sanzi and the defendant, Gonzalez, that the district court rejected.

In July 2007, DHL was given a package in California containing about one kilogram of cocaine and twenty-four pounds of marijuana to deliver to “Anna Ohoven,” 80 Hawkins Street, Second Floor, Providence, Rhode Island. The record does not reveal how DHL learned that the box contained drugs, but Gonzalez does not deny that DHL had that information, made the police aware of the drugs, and turned the

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package over to Rhode Island police. A male caller had phoned DHL to inquire when it would be delivered; the DHL phone number was later found in Gonzalez's pocket.

Providence Detective Richard Ruggiero attempted to deliver the package on July 23, 2007, to the addressee, Ohoven, at the 80 Hawkins address, which was the second-floor apartment of a two-story, two-apartment building. He posed as a DHL deliveryman and drove a DHL truck. After knocking at the apartment door, Ruggiero heard someone climbing the stairs, who turned out to be Gonzalez. Gonzalez said he was expecting the package, opened the apartment door with his own keys, and invited Ruggiero inside the apartment. The apartment seemed vacant; it appeared to contain only a mattress and some clothes, not identifiable by gender from Ruggiero's position, strewn about.

Gonzalez offered to sign for the package, saying that Ohoven was his cousin and lived with him in the apartment. When Ruggiero insisted that Anna Ohoven had to sign for it, Gonzalez said he could reach Anna and then called someone and spoke Spanish. He handed Ruggiero the phone and said Anna was on the line. Ruggiero spoke with a woman who identified herself as Anna and said she could pick the package up at noon. Ruggiero agreed to return at noon.

After Ruggiero left, Detective Timothy Sanzi, conducting surveillance, saw Gonzalez return to the apartment twice, the second time with a woman, later identified as Kristina LaFrance. LaFrance later pled guilty and testified against Gonzalez. Gonzalez and the woman went inside the building; then Gonzalez left the building, parked his car in front of a lemonade stand up the street, and watched the building from his car.

Ruggiero returned to the apartment about fifteen minutes after Gonzalez and the woman arrived at the building. LaFrance, who was inside the apartment, answered the door. She identified herself to Ruggiero as Anna and as the woman on the earlier phone conversation and said she lived in the apartment. She could not produce identification. LaFrance then signed for the package, writing the name “Anna Ohoben” and her address as the 80 Hawkins second-floor apartment. Ruggiero identified himself as a police officer, summoned backup, and arrested her.

LaFrance gave Ruggiero permission to search the apartment. Ruggiero then did a quick sweep of the apartment, which the district court treated as a protective sweep; on the kitchen counter he found a pink slip of paper with the name “Anna Ohoben” signed repeatedly, as if for practice, and the DHL package tracking number. Further searching with other officers uncovered more evidence. LaFrance said that her brother's boyfriend had paid her $100 to pick up the package, and she produced a $100 bill as proof.

Sanzi and other police officers arrested Gonzalez, who was still sitting in his car. Detective Sanzi realized that Gonzalez spoke poor English; he brought Gonzalez to the apartment so that Sergeant Rave, who speaks fluent Spanish, could communicate with him. Rave read Gonzalez his Miranda rights in Spanish, which Gonzalez confirmed he understood, and then interviewed him. Gonzalez told Rave that he had never been to the apartment before and was simply buying lemonade up the street. Gonzalez's own testimony confirmed that his statement to Rave that he had never been to the apartment was untrue; at the suppression hearing Gonzalez testified that he lived in the apartment.

Rave also did a pat-down search of Gonzalez. Among other items, he found two

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pieces of paper. One had “DHL,” “Anna Ohoben,” and the package tracking number written on it. The other had the DHL phone number on it. He also found keys to a Mercedes-Benz; a silver Mercedes, registered to Gonzalez, was parked in the apartment building's driveway.

Ruggiero later obtained a search warrant for the Mercedes, after learning that Gonzalez sometimes used a silver Mercedes to traffic drugs. That search turned up further incriminating evidence.

At the suppression hearing, Detective Sanzi testified that he did not see Gonzalez enter the building when Ruggiero made his first delivery attempt. Sanzi was on roving surveillance and was driving around the block at the time. He did see Ruggiero enter the building and then heard on police radio that Ruggiero was speaking on the phone to a woman. Sanzi later saw Ruggiero come downstairs and approach and speak to Gonzalez, who was on the street.

Gonzalez testified that on July 23 he was living, alone, in the 80 Hawkins apartment. He came home and found a DHL delivery person waiting. Gonzalez testified that he was not expecting a delivery and that he had told Ruggiero that the package was not his. He could not explain why the package was addressed to his apartment.

Gonzalez testified that he told Ruggiero that his cousin possibly was expecting a package. At the hearing Gonzalez could not name that cousin, but he was sure he had not said her name was Anna Ohoven. He admitted putting his cousin on the phone with Ruggiero but said that he did not know what was said. Gonzalez testified that he offered to let Ruggiero leave the package outside the apartment, which Ruggiero declined, and Gonzalez and Ruggiero left. Gonzalez denied ever allowing Ruggiero inside the...