U.S. v. JesÚs–viera

• Decision Date: 24 August 2011
• Docket Number: No. 10–1365.,10–1365.
• Citation: 655 F.3d 52
• Parties: UNITED STATES of America, Appellee,v.Ramón DE JESÚS–VIERA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

655 F.3d 52

UNITED STATES of America, Appellee,

v.Ramón DE JESÚS–VIERA, Defendant, Appellant.

No. 10–1365.

United States Court of Appeals, First Circuit.

Heard May 3, 2011.Decided Aug. 24, 2011.

Robert Herrick for defendant-appellant.Luke Cass, Assistant United States Attorney, with whom Nelson Pérez–Sosa, Chief, Appellate Division, and Rosa Emilia Rodriguez–Velez, United States Attorney, were on brief for appellee.Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.LYNCH, Chief Judge.

United States Customs and Border Patrol (CBP) officers seized over two kilograms of heroin and ninety-six kilograms of cocaine from Ramón De Jesús–Viera's vehicle during a border search conducted upon De Jesús–Viera's return to Puerto Rico from the Dominican Republic. A jury convicted De Jesús–Viera on one count of knowingly and intentionally possessing heroin and cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and one count of knowingly and intentionally importing to the United States heroin and cocaine in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A), (B). The district court sentenced De Jesús–Viera to 188 months' imprisonment.

De Jesús–Viera appeals, challenging both his conviction and his sentence. He argues the district court erred in denying his motion to suppress the evidence recovered from his vehicle, it erred when it instructed the jury on a willful blindness theory, and the evidence is insufficient to support his conviction. He also argues the district court erred by denying his request for an offense-level reduction for playing a minor role in the criminal activity. See U.S.S.G. § 3B1.2(b).

We affirm the conviction and the sentence.

I.

Because De Jesús–Viera questions the sufficiency of the evidence supporting his conviction, we relate the facts in the light most favorable to the verdict. See United States v. DeCologero, 530 F.3d 36, 47 (1st Cir.2008).

In the early morning hours of July 13, 2007, De Jesús–Viera arrived in Mayagüez, Puerto Rico, on a car and passenger ferry from Santo Domingo, Dominican Republic. CBP Officer Javier Ruíz–Toro was working in the port's primary inspection area at the time, and De Jesús–Viera presented him with a Puerto Rico driver's license, birth certificate, and customs declaration card.

As is customary practice for CBP Officers, Ruíz–Toro asked De Jesús–Viera questions to determine whether to permit his entry or instead refer De Jesús–Viera to secondary inspection. In response, De Jesús–Viera stated that he had been in the Dominican Republic to visit friends for two weeks and had nothing to declare. Ruíz–Toro asked De Jesús–Viera how long he had owned his vehicle, a 1984 Chevrolet El Camino. De Jesús–Viera replied that he had only recently purchased it. This raised Ruíz–Toro's suspicions because, by training and experience, he knew that drug trafficking organizations often registered vehicles in a driver's name immediately before using that vehicle to import drugs. Ruíz–Toro pressed further, inquiring as to whether De Jesús–Viera had made any repairs to the vehicle, which De Jesús–Viera denied. During this time, De Jesús–Viera's voice was trembling, his hands and legs were shaking, he was sweating profusely, and he avoided eye contact. De Jesús–Viera explained his demeanor by telling Ruíz–Toro that he had a hangover, but Ruíz–Toro did not believe him. In light of De Jesús–Viera's demeanor and his vehicle's recent registration, Ruíz–Toro referred him to secondary inspection.

CBP Officer Jorge Pitre, working in the secondary inspection area, asked De Jesús–Viera about the duration and purpose of his trip to the Dominican Republic. De Jesús–Viera said he had been in the Dominican Republic for two weeks in order to show off his new car, that he had not made any repairs to his car, and that he did not have anything to declare from the Dominican Republic. Pitre noticed that De Jesús–Viera avoided eye contact and was slightly shaking during the questioning.

After questioning De Jesús–Viera, Pitre used a machine that measures the density of an object when passed across the surface of that object, a “buster,” to inspect De Jesús–Viera's vehicle. The buster's readings indicated that there was a dense object beneath the floor of one part of the vehicle. Given the density readings and De Jesús–Viera's nervousness, Pitre asked CBP Officer Isidro Mercado to cross-interview De Jesús–Viera.

Mercado asked De Jesús–Viera about the purpose of his trip, the amount of money he took to and from the Dominican Republic, and whether he had made any repairs to his vehicle. De Jesús–Viera responded that he had traveled with about $3,000 “to spend ... with girls,” that he was returning with roughly $200, and that he had not made any vehicle repairs. Mercado observed De Jesús–Viera shaking and found him to be nervous.

Officers Mercado and Pitre then visibly inspected the interior and undercarriage of De Jesús–Viera's vehicle. They opened the doors, pushed the seats forward, and saw a large speaker box mounted in the rear. When the box was removed, the felt lining underneath appeared “freshly done.” Removing a portion of the felt, the officers smelled a chemical odor that suggested an adhesive agent had recently been used or the area had recently been painted. This contradicted De Jesús–Viera's claim that he had not made any repairs to the vehicle. Meanwhile, another officer inspected its undercarriage, and informed the others that “something is not right here,” and that there was a bulge or compartment underneath the area of the felt lining.

CBP Officer Luis Henríquez, who was present for the inspection of the car, left and returned with a drug-sniffing dog to do a canine inspection of the vehicle. The dog searched the area and began scratching “very aggressively” at the portion of the vehicle that the officers were now focused upon, signaling there might be narcotics in that area. After obtaining permission from their superiors to do so, the officers drilled into the compartment which had been discovered on the underside of De Jesús–Viera's vehicle so as to allow a fiberoptic cable to peer inside the compartment. It was the drilling into the undercarriage on which the motion to suppress was based.

Once the officers removed the drill bit, they noticed white powder on the bit's tip. The officers administered a field test of the substance, and it tested positive for cocaine.

After placing De Jesús–Viera in custody, the officers sawed open the hidden compartment and extracted sixty-three packages. These packages were later determined to contain a total of 2.12 kilograms of heroin and approximately 96 kilograms of cocaine. They also discovered a device with exposed wires; applying an electrical current to the wires caused the compartment to open, and reversing the wires and applying a current caused the compartment to shut. This type of device is commonly used in vehicles that have been modified specifically to transport contraband.

II.

De Jesús–Viera was charged with one count of possessing with intent to distribute one kilogram or more of heroin and five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and one count of importing into the United States one kilogram or more of heroin and five kilograms or more of cocaine in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A), (B).

On October 4, 2007, De Jesús–Viera filed a motion to suppress the narcotics evidence seized from his vehicle on the grounds that the drilling of the vehicle was not a routine border search and that there was no reasonable suspicion to support the non-routine search. The district court referred the motion to a magistrate judge, who originally scheduled a suppression hearing but later cancelled it. The magistrate judge determined that “the defendant has been fully heard on his motion with the submissions made, and that an evidentiary hearing is not required,” and issued a recommended ruling denying De Jesús–Viera's motion to suppress on the grounds that the drilling qualified as a routine border search.

De Jesús–Viera moved for reconsideration of the recommended ruling based on United States v. Flores–Montano, 541 U.S. 149, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004), which he said left open the possibility that the Fourth Amendment requires that some destructive property searches at the border be supported by reasonable suspicion, and United States v. Robles, 45 F.3d 1, 5 (1st Cir.1995), which held, without the government's taking a contrary position, that the drilling into a metal cylindrical container in that case was a non-routine search. The magistrate judge issued a second recommended ruling on December 19, 2007, rejecting De Jesús–Viera's arguments and denying De Jesús– Viera's motion for reconsideration. The second recommended ruling stated that any objections to it were due on January 8, 2008, but De Jesús–Viera failed to make any objections. The district court adopted the ruling on February 4, 2008, agreeing that the CBP officers' drilling of De Jesús–Viera's vehicle qualified as a routine border search that did not require reasonable suspicion.

The jury convicted De Jesús–Viera on both counts following a four-day trial from September 22, 2008, to September 25, 2008. De Jesús–Viera filed a motion for judgment of acquittal, Fed.R.Crim.P. 29, arguing that the evidence was not sufficient to support his conviction, and a motion for a new trial, Fed.R.Crim.P. 33, arguing procedural errors. The district court denied De Jesús–Viera's motions.

A sentencing hearing was held on February 12, 2010. De Jesús–Viera argued that he was entitled to a two-level reduction in his offense level because he played a minor role in the offense. See U.S.S.G. § 3B1.2(b). The district court found De Jesús–Viera did not qualify for the two-level role adjustment, setting his offense level at 36 and yielding a guideline range of 188 to 235 months. The court...