U.S. v. Sepulveda

• Decision Date: 06 September 1996
• Docket Number: 95-2256,Nos. 95-2255,s. 95-2255
• Citation: 102 F.3d 1313
• Parties: UNITED STATES of America, Appellee, v. Juan SEPULVEDA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Juan VELASQUEZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1313

102 F.3d 1313

UNITED STATES of America, Appellee, v. Juan SEPULVEDA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Juan VELASQUEZ, Defendant, Appellant.

Nos. 95-2255, 95-2256.

United States Court of Appeals, First Circuit.

Heard Sept. 6, 1996.

Decided Dec. 30, 1996.

William T. Murphy, Providence, RI by Appointment of the Court, for appellant Juan Sepulveda.

Stephen J. Weymouth, Boston, MA by Appointment of the Court, for appellant Juan Velasquez.

Sheldon Whitehouse, United States Attorney, with whom Stephanie S. Browne, Assistant United States Attorney, was on brief for the United States.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOUDIN, Circuit Judge.

On February 14, 1995, acting on an informant's tip that two Hispanic males were selling crack through a side window, police detectives in Providence, Rhode Island staked out the designated first-floor apartment. The officers saw an unusual number of visitors going to and from the side of the building, remaining only briefly. After watching for an hour, an undercover detective approached one side window, was directed to a different side window partly covered with plywood and purchased two "rocks" of cocaine base ("crack"), paying with two marked $20 bills.

The police then forcibly entered the apartment and found four men inside, including appellants Juan Sepulveda and Juan Velasquez. The apartment was unfurnished, with no signs of personal drug use by the occupants. The undercover detective identified Velasquez as the seller. Sepulveda's pants pockets contained plastic bags of powder cocaine and of crack, and a bundle of cash (including the two marked $20 bills from the earlier purchase). The police also found a sawed-off rifle which proved to be unregistered.

Both Velasquez and Sepulveda were charged with a panoply of drug and weapons offenses. The case proceeded to trial in June 1995 under a redacted five-count indictment: count I charged the defendants with conspiracy to distribute, and to possess with intent to distribute crack. 21 U.S.C. § 841(a)(1). Counts II and III, respectively, alleged distribution of crack and possession of crack with intent to distribute. Id. Count IV charged the use of a firearm during a drug trafficking crime, 18 U.S.C. § 924(c)(1), and count V alleged possession of an unregistered sawed-off rifle. 26 U.S.C. §§ 5841, 5861(d), 5871. After a four-day trial, the jury found both defendants guilty on all five counts.

In October 1995, the district judge sentenced Sepulveda to 70 months' imprisonment on counts I, II, III, and V, and Velasquez to 78 months on those same counts. Both defendants were also given a mandatory consecutive 10-year sentence under count IV; but the government and the defendants now stipulate that the conviction and sentence under count IV have been undermined by Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The appeals are directed to the remaining four counts.

I.

We begin with the more substantial of the challenges to the convictions. First, Sepulveda asserts that the search of his person by police officers immediately prior to his arrest was unlawful because it was executed without a warrant or probable cause and exceeded the lawful scope of a protective frisk for weapons. Accordingly, Sepulveda says that the drugs and cash discovered in his pockets should have been suppressed, and that the remaining evidence is not enough to support his conviction. The government argues that Sepulveda waived this issue by not raising it in the district court.

At a suppression hearing on June 16, 1995, the district court ruled that the apartment search was based on probable cause and that exigent circumstances--namely, the risk that contraband might be destroyed--justified entry without awaiting a warrant. Whether Sepulveda separately disputed the search of his person, and whether the district court intended its reasoning to cover this search as well, is not entirely clear. Since the facts are undisputed and we review probable cause decisions de novo, Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), the easiest course is for us to decide ourselves whether the search of Sepulveda himself was valid.

The police had ample cause to arrest Velasquez, but probable cause must exist for each person arrested, and "mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). The government does not argue that a mere protective frisk of Sepulveda would have produced the money as well as the drugs, so the question is whether the circumstances provided probable cause to arrest--and therefore to search--Sepulveda. United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir.1995).

The apartment in this case was unfurnished and partly boarded up. There is no indication that it was used for any purpose other than distribution of drugs. The numerous walk-up sales the police had observed confirmed that the apartment was being used for drug distribution and strongly suggested that everyone in the apartment knew of this activity. See Martinez-Molina, 64 F.3d at 729. It is only a short step to suppose that those present in the otherwise vacant apartment were probably drug dealers or purchasers.

The D.C. Circuit encountered similar facts in United States v. Holder, 990 F.2d 1327, 1329 (D.C.Cir.1993). After entering an apartment and finding evidence of drug distribution, the police arrested the individuals found inside. The court upheld the arrest of a defendant who claimed to be a bystander, saying that the open nature of the drug sale activity in the apartment gave rise to a reasonable inference that each occupant was involved in the drug trade--either as an accomplice in the drug sales or as a customer. Id. at 1329.

To be sure, Sepulveda might have been an innocent visitor. But probable cause requires only that the police have "reasonable grounds to believe" that Sepulveda had committed the crime. See United States v. Melvin, 596 F.2d 492, 495 (1st Cir.1979). The facts of this case persuade us that there was ample reason for the police to think that Sepulveda was engaged in a felony. Given probable cause prior to the search, it is irrelevant that the formal arrest may have followed the search. Rawlings v. Kentucky, 448 U.S. 98, 111 & n. 6, 100 S.Ct. 2556, 2564 & n. 6, 65 L.Ed.2d 633 (1980).

Second, Velasquez argues that the district court erred in the jury instructions by failing to tell the jury, according to his brief on appeal, "that it could not base a conviction of possession with intent to distribute cocaine base under count III on the same conduct that formed the basis for the distribution count (Count II)." The government says (correctly) that Velasquez did little to explain his "concern" to the district court, making no request for any specific curative language. The objection was as follows.

I have a concern as it deals with the charge of possession with intent to sell--distribute. The Court knows, based on the evidence that it is alleged that there was a quantity of contraband allegedly in Mr. Sepulveda's pocket. I am concerned just based on the charge as it pertains to the definition that the Court instructed, as it pertains to the possession with intent to distribute, that the jury may in fact confuse that with the delivery. In other words, your Honor, I'm concerned that by virtue of the fact that we have a delivery charge and we have a possession with intent to distribute charge, I'm concerned that the jury may confuse them or think that they are in fact one and the same.

A request for specific curative language may sometimes be needed to convey the substance of a requested addition or correction to the charge, and the absence of a specific request may prove fatal. E.g., Parker v. Nashua, 76 F.3d 9, 12 (1st Cir.1996). Still, one can imagine cases where some other formula might, in context, convey all of the needed information (e.g., "I object to the definition of 'possession' because...."). Here, based on the district judge's response, we think it is unclear that the district judge understood the objection to be the "same conduct" claim that Velasquez is now pressing on appeal.

In any event, to the extent we understand the objection now, it appears to us to be ill-founded. Explaining why requires some background. Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), a defendant can be convicted of two differently defined offenses, based on the same core of facts, so long as each offense requires an element that the other does not. Id. at 304, 52 S.Ct. at 182. The offense of distribution obviously does require an element not required for the crime of possession with intent, namely, the act of distribution.

It is possible--albeit unusual--to be guilty of distribution of a drug without also possessing it with intent to distribute. Someone who participates in a drug transfer--e.g., as a broker or armed guard--can be liable for distribution without ever possessing the drugs. See, e.g., United States v. Brunty, 701 F.2d 1375, 1381 & n. 16 (11th Cir.1983). While "possession" is certainly helpful in proving distribution, it is technically not a necessary element. United States v. Tejada, 886 F.2d 483, 490 (1st Cir.1989). Compare 2 Sand et al., Modern Federal Jury Instructions, 56-24 to 56-26, 56-4 (1992).

But satisfying Blockburger has not wholly satisfied the circuit courts. Where the evidence shows only that a defendant handed over a packet of drugs, some courts have balked at the idea that Congress intended to allow a conviction both for possession with intent and for distribution. E.g., United States v. Meredith, 824 F.2d 1418, 1426 (4th Cir.1987). Other circuits have said...