U.S. v. Perez-Montanez

• Decision Date: 02 November 1999
• Docket Number: No. 98-2210,SANTIAGO-RODRIGUE,N,PEREZ-MONTANE,D,98-2210
• Parties: (1st Cir. 2000) UNITED STATES, Appellee, v. DAVIDefendant, Appellant. UNITED STATES, Appellee, v. JOSE RAULefendant, Appellant. o. 98-1952. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 434

202 F.3d 434 (1st Cir. 2000)

UNITED STATES, Appellee, v. DAVID PEREZ-MONTANEZ, Defendant, Appellant.

UNITED STATES, Appellee, v. JOSE RAUL SANTIAGO-RODRIGUEZ, Defendant, Appellant.

No. 98-2210, No. 98-1952.

United States Court of Appeals, For the First Circuit.

Heard Nov. 2, 1999.

Decided February 2, 2000.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Perez-Gimenez, U.S. District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Jorge L. Arroyo-Alejandro, by appointment of the Court, for appellant David Perez-Montanez and Rachel Brill, by appointment of the Court, for appellant Jose Raul Santiago, were on consolidated brief.

Mark Irish, Assistant United States Attorney, with whom Guillermo Gil, United State Attorney, Jorge E. Vega-Pacheco, Chief, Criminal Division, and Camille Velez-Rive, Assistant United States Attorney, were on brief, for appellee.

Before Lynch, Circuit Judge, Campbell, Senior Circuit Judge, and O'Toole, Jr.,^* District Judge.

O'TOOLE, District Judge.

David Perez-Montanez (Perez) and Jose Raul Santiago-Rodrguez (Santiago) were indicted for the federal crimes of carjacking, 18 U.S.C. § 2119, and carrying or using a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A). They were convicted on both counts and received life sentences for the carjacking offense. They filed timely notices of appeal. We have jurisdiction under 28 U.S.C. § 1291.

For the following reasons, we AFFIRM the convictions.

I. Background

On February 8, 1996, David Vazquez-Rivera (Vazquez) was found dead at his job site, face down with a bullet wound in his back. He had been doing construction work alone at a house in Caguas, Puerto Rico; his car, a brown Toyota station wagon, was missing. Police received tips that the defendants and a third man, Carmelo Serrano-Bentez (Serrano), had formed a plan to steal Vazquez's car from him and use it for parts to repair a similar Toyota station wagon owned by Santiago.

Pursuing their investigation, the police went to Santiago's house. There was a white Toyota station wagon parked in the yard next to the residence. One of the officers, Ulysses Batalla Ramos (Batalla), later testified that, having obtained Santiago's consent, the police searched in and around the automobile and a shed located nearby on Santiago's property. They found a number of automobile parts. Also with Santiago's consent, they took away the white Toyota station wagon and many of the auto parts they had found. Some of the parts were eventually traced to Vazquez's car.

Perez, Santiago, and Serrano all were indicted and all initially pled not guilty. Serrano later changed his plea, however, and he testified as a government witness against Perez and Santiago at trial. In his testimony, Serrano said that, pursuant to an agreement with the other men, he drove Perez and Santiago to the construction site where Vazquez was working, leaving them there to rob Vazquez of his Toyota, and then proceeded to another part of Caguas to await their return. Serrano testified that Perez and Santiago did indeed return with Vazquez's car and told him that the robbery had gone badly and that they had killed Vazquez. Serrano was cross- examined at length regarding the plea bargain he had struck with the government that made him a cooperating witness and also regarding the conflicting versions of events that he had told at different times.

The government sought to introduce many of the auto parts seized from Santiago's residence, but the district court refused to admit several of those parts in evidence because the government could not establish the necessary foundation. The parts that were admitted, however, included a bumper that had been installed on Santiago's Toyota. Vazquez's mother identified the bumper at trial as one that had come from her son's car. She was able to recognize it because of a distinctive mark that had been left by a barbed wire fence that she had once driven into. She also recognized her son's tool kit among the effects seized from Santiago's property.

After brief deliberations, the jury found Perez and Santiago guilty of both carjacking and the use of a firearm in relation to a crime of violence. On the carjacking convictions, both defendants were sentenced to life imprisonment, pursuant to subsection (3) of 18 U.S.C. § 2119.

II. Search and Seizure

Santiago appeals the district court's denial of his motion to suppress the evidence obtained from the search of his property.¹ The district court found that the discovery of the white Toyota station wagon occurred because it was in plain view and that the subsequent seizure of auto parts from Santiago's property had been made with his "total, absolute and complete consent." Santiago challenges the latter part of the court's finding, arguing that no valid consent was given, and even if it was, the officers seized evidence which exceeded the scope of the consent. We will not disturb the district court's factual findings unless clearly erroneous and will uphold the court's denial of the motion to suppress if "any reasonable view of the evidence supports it." United States v. Lanni, 951 F.2d 440, 441 (1st Cir. 1991); see also United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990).

Valid consent renders a warrantless search constitutionally permissible, and while consent must be voluntary to be valid, there is no requirement that the person who gave consent must have been explicitly advised of the right to withhold it. See Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973) (upholding refusal to suppress fruits of car search despite fact that consent was obtained without informing car owner of right to refuse search). It is the prosecution's burden to establish, by a preponderance of the evidence, that consent was "freely and voluntarily given;" there must be more than mere acquiescence in the face of an unfounded claim of present lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (suppressing fruits of search where consent was founded on police officer's false assertion that he had a search warrant). The district court's conclusion as to whether consent was freely given must take into account the totality of circumstances surrounding the interaction between the defendant and the authorities. See United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993).

We find no error in the district court's conclusion that Santiago consented to the seizure. Batalla testified that Santiago was not threatened, intimidated or coerced, but rather that he invited the officers onto the property, permitted them to look around, and agreed to let them take away the white station wagon and the auto parts. The testimony was not inherently unbelievable, and, in the absence of a reason not to do so, we defer to the district court's first-hand evaluation of Batalla's credibility as a witness. The defendants try to make something of Batalla's testimony that he would have "obtain[ed] other means" to seize the evidence if Santiago had not consented. Batalla also testified that he never communicated such sentiments to Santiago, but even if he had, an officer's statement that he will "obtain other means" to seize evidence is not the same as saying that he is presently entitled, without the "other means," to the evidence. It is, therefore, not the sort of pretense to present lawful authority that Bumper forbids as a foundation for consent. Nor is there anything false or unduly coercive about a statement of an intention to seek other means to obtain access to property. Indeed, as Batalla explained, the "other means" he had in mind would have been a search warrant, which on any fair view of the evidence would have been amply supported by probable cause.

Nor did the district court err in concluding that Santiago gave voluntary consent to the seizure of all the auto parts taken by the officers. Although the form Santiago signed stated that the police could take a "part," singular, not "parts," plural, Batalla testified that Santiago orally agreed to the seizure of all the parts and even went so far as to help the officers load the parts into a police car. Again, it is not enough to overturn the district court's findings simply to argue that different findings might have been made. On the totality of circumstances described in the evidence, the district court could reasonably have concluded that Santiago voluntarily consented to the seizure of all the parts taken.

For these reasons, there was no error in the denial of the motion to suppress the fruits of the search of Santiago's property.

III. Evidentiary Rulings

Perez and Santiago challenge a variety of evidentiary rulings made by the district court during the course of the trial, arguing that each of the challenged rulings was error in itself and that the cumulative effect of the errors was to deny them a fair trial. We review the rulings for abuse of discretion before deciding what cumulative effect any errors may have had. See United States v. Cardales, 168 F.3d 548, 557 (1st Cir. 1999). We find no abuse of discretion in the several challenged rulings.

The defendants objected to the admission of statements allegedly made by Santiago and recounted at trial by government witnesses. One witness testified that he heard Santiago make reference to a "hidden car" shortly after the homicide, and Serrano testified that Santiago had encouraged him to stonewall the police, reassuring him that the government's case was weak and that everything would turn out well. As against Santiago, neither statement was hearsay, since both were admissions that meet the qualifications of Fed. R. Evid. 801(d)(2)(A). As against Perez, the statements were admissible as statements of a co-conspirator under Fed. R. Evid. 801(d)(2)(E). It was not an abuse of discretion to admit the statements; neither carried a risk of unfair prejudice that so...