U.S. v. Luciano

• Citation: 329 F.3d 1
• Decision Date: 06 May 2003
• Docket Number: No. 01-2318.,01-2318.
• Parties: UNITED STATES of America, Appellee, v. Raul LUCIANO, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

329 F.3d 1

UNITED STATES of America, Appellee, v. Raul LUCIANO, Defendant, Appellant.

No. 01-2318.

United States Court of Appeals, First Circuit.

Heard December 3, 2002.

Decided May 6, 2003.

Randy Olen, with whom John M. Cicilline was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Zechariah Chafee, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Circuit Judge, FARRIS, Senior Circuit Judge,^* and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Immediately after a buy-and-bust sting, government agents conducted a warrantless search of defendant-appellant Raul Luciano's "stash house" and found a sizable quantity of heroin, drug paraphernalia, and two 9mm handguns. Later, a two-count indictment issued, charging Luciano with possession with intent to distribute over 100 grams of heroin, see 21 U.S.C. § 841(a)(1), (b)(1)(B), and possession of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A).

Before the case went to trial, Luciano unsuccessfully moved to suppress the evidence discovered during the search. The trial itself lasted less than two days. After barely two hours of deliberations, the jury returned a verdict of guilty on both counts. The court sentenced Luciano to sixty-three months' imprisonment on the drug possession count and sixty months' imprisonment on the gun possession count, the terms to be served consecutively as required by the gun possession statute. See id. § 924(c)(1)(D)(ii).

On appeal, Luciano presents two claims. First, he argues that the evidence was insufficient to support a finding that he had possessed a firearm "in furtherance of" a drug trafficking crime. Second, he claims that government agents failed to obtain his voluntary consent before conducting a warrantless search, and that the district court therefore erred in denying his motion to suppress the drugs and firearms evidence. Rejecting both of Luciano's claims, we affirm.

I.

Most of the underlying facts in this case are not in dispute.¹ On February 20, 2001, agents from the Drug Enforcement Administration ("DEA") convinced a female cooperating individual ("CI") to contact Luciano and schedule a drug purchase in Providence, Rhode Island. The CI met Luciano on Wayland Avenue in Providence, and they drove in separate cars to a three-story tenement building located at 31 Grape Street. Unbeknownst to Luciano DEA agents followed in unmarked vehicles.

While Luciano was in the apartment building, agents established positions around the premises. A few minutes later, Agent Philip Bernal saw Luciano walk down the driveway towards the CI, who was waiting in her car parked on the street. Luciano was carrying a small parcel. When Luciano opened the door to the CI's car, Bernal approached with his gun drawn, identified himself as law enforcement, and told Luciano to put his hands in the air. Luciano complied, stepping back from the car and dropping the parcel. Bernal placed Luciano in handcuffs as four or five additional agents came to the scene. The parcel was later found to contain a total of 6.5 grams of 92% pure heroin, divided into 800 glassine packets, each packet containing an individual dose. Some of the packets were stamped with a "bad boy" figure.²

Immediately after Bernal arrested Luciano, Special Agent James McCormick asked Luciano where he had just been inside the building. Luciano replied, "[t]hird floor." Several agents were then dispatched to the third floor of the building to conduct a "protective sweep." Agent Roberto DaSilva approached Luciano and advised him of his Miranda rights — first in English, then in Spanish. Luciano indicated to DaSilva that he understood his rights. DaSilva then asked Luciano for permission to search the third-floor apartment. Luciano responded, "[g]o ahead."

Agents led Luciano up to the sparsely-furnished third-floor apartment where he was uncuffed and placed in a chair at the kitchen table. DaSilva, who is bilingual, once again informed Luciano of his Miranda rights in English and in Spanish. Luciano was then given a consent-to-search form which provided in English:

1. I have been asked to permit special agents of the Drug Enforcement Administration to search ... 31 Grape Street, Apt # 3 (3rd floor), Providence, RI;

2. I have not been threatened nor forced in any way;

3. I freely consent to this search.

The address had been written in by hand on the pre-printed form by Special Agent John O'Donoghue. O'Donoghue asked Luciano if he understood English, and Luciano responded in the affirmative. O'Donoghue then read the consent form to Luciano and asked Luciano to read it. Luciano, after reading the form, volunteered that he understood it. O'Donoghue then asked Luciano again, "are you sure you understand?" Luciano again answered in the affirmative and signed the form, which O'Donoghue and another agent signed as witnesses.

During the subsequent search, agent Bernal noticed a square panel in the ceiling that appeared to give access to an attic or crawl-space. Bernal mounted a chair and pushed the panel aside. Looking into the crawl-space, Bernal noticed a large black plastic bag near the edge, which he could reach without actually climbing into the opening. Bernal took the bag down and inspected the contents. Inside the black bag was another bag containing 371.6 grams of heroin — potentially over 40,000 individual doses. It also contained a digital scale with heroin residue on it, two coffee grinders with heroin residue on them, a sifter and spoon with residue, and ten boxes of glassine packets identical to those found in the parcel that Luciano had dropped on the ground outside the building.³ Like those in the parcel, some of the packets were stamped with a "bad boy" figure. At trial, Bernal, O'Donoghue, and DaSilva all testified that when the bag was brought into the kitchen, Luciano stated, "you got me" (or words to that effect), and admitted that the bag belonged to him.

Agent O'Donoghue then returned to the opening in the ceiling and climbed into the crawl space. Using his flashlight, he discovered a smaller bag, at least eighteen inches from the edge of the opening. That bag contained two 9mm handguns and two loaded (but detached) magazines. Subsequent tests demonstrated that the magazines fit the guns and that the guns worked.

Luciano was then removed to DEA headquarters where he was questioned again by Agent DaSilva. The interrogation was audiotaped and ultimately entered into evidence at trial. At the beginning of the interrogation, DaSilva advised Luciano of his Miranda rights a third time in English and Spanish, and Luciano indicated that he understood those rights. DaSilva and Special Agent Anthony Cardello then interviewed Luciano in English. Luciano again admitted that the drugs and the drug paraphernalia in the crawl space belonged to him. While initially equivocating, he ultimately admitted that the guns were his as well:

DaSilva: That stuff that we found in your apartment, that was yours?

Luciano: Yeah.

[....]

DaSilva: OK, so the stuff is yours, how about the guns? Are ... are they yours too?

Luciano: I don't know.

Cardello: What do you mean you don't know?

Luciano: The stuff is mine.

DaSilva: The stuff was yours, ah, how much, how much heroin was there?

Luciano: I don't know.

DaSilva: What would you guess?

Luciano: Two to three hundred ...

DaSilva: Two to three hundred grams?

Luciano: Yeah.

DaSilva: How about the, ah, all the packaging materials and all that, was that all yours also?

Luciano: Yeah.

[....]

After some overlapping voices and unintelligible conversation, the questioning returned to the guns:

Cardello: The guns and the heroin?

Luciano: Everything is mine and that's it.

Luciano then requested a lawyer, and the agents immediately stopped their questioning.

II.

Luciano claims that the government presented insufficient evidence at trial to sustain a conviction for the second count — the gun possession charge.⁴ See 18 U.S.C. § 924(c)(1)(A).⁵ Specifically, Luciano argues that the guns found in the crawl-space "played no role whatsoever in the drug transaction; no `nexus' existed between the firearms and the drug selling operation." Thus, he maintains, his possession of the firearms was not, as the statute requires, "in furtherance of" his drug trafficking. Therefore, the argument goes, his conviction under § 924 must be reversed.

Before considering the merits of Luciano's claim, we note that Luciano did not make this argument to the district court. In fact, he never made a Rule 29 motion for judgment of acquittal — not at the close of the government's case, not at the close of his own case, and not after the jury had returned its verdict. We have consistently held that claims of insufficient evidence must be presented in the first instance to the district court. See United States v. Van Horn, 277 F.3d 48, 54 (1st Cir.2002). Since Luciano failed to make his insufficiency argument below, he "must... demonstrate `clear and gross' injustice, or `manifest injustice' before the conviction is overturned on that ground." United States v. Kilcullen, 546 F.2d 435, 441 (1st Cir.1976) (quoting Malatkofski v. United States, 179 F.2d 905, 910 (1st Cir.1950), and United States v. Principe, 482 F.2d 60, 61 n. 1 (1st Cir.1973)); see United States v. Serafino, 281 F.3d 327, 333 (1st Cir.2002) (indicating that appellant must demonstrate "clear and gross injustice" to succeed on unpreserved insufficiency claim); Van Horn, 277 F.3d at 54 (same); United States v. Santiago, 83 F.3d 20, 23 (1st Cir.1996) (same); United States v. Concemi, 957 F.2d 942, 950 (1st Cir.1992) (same); United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir.1989) (same); United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.1982) (same).⁶

The "in furtherance of" language that Luciano puts at issue on appeal is a relatively...