U.S. v. Torres–rosario

• Decision Date: 23 September 2011
• Docket Number: No. 10–1155.,10–1155.
• Citation: 658 F.3d 110
• Parties: UNITED STATES of America, Appellee,v.Rafael TORRES–ROSARIO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

658 F.3d 110

UNITED STATES of America, Appellee,

v.Rafael TORRES–ROSARIO, Defendant, Appellant.

No. 10–1155.

United States Court of Appeals, First Circuit.

Heard July 26, 2011.Decided Sept. 23, 2011.

James B. Krasnoo, by appointment of the court, with whom Benjamin L. Falkner and Krasnoo Klehm LLP were on brief for appellant.Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief for appellee.Before BOUDIN, SELYA and DYK,^* Circuit Judges.BOUDIN, Circuit Judge.

On March 6, 2008, law enforcement officers executed a search warrant at 8 George Street, Apt. 1, in New Bedford, Massachusetts, the residence of defendant-appellant Rafael Torres–Rosario, his girlfriend Miriam Pellot, and Pellot's son Wilfredo Guerra. Under the mattress in Torres–Rosario and Pellot's bedroom, the officers found a loaded firearm and Torres–Rosario's wallet, including photo identification and other paperwork. In the same room, the officers also found five bags of heroin, each bag twisted and tied into a knot with the ends cut off, as well as a bag of cocaine, $500 in cash, scissors, a razor blade, and many more empty baggies.

In custody and en route to the police barracks, Torres–Rosario waived his Miranda rights and told the police that he had bought the gun and that the gun belonged to him. Thereafter, Torres–Rosario was indicted for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (2006), and, after trial, found guilty by jury. On January 21, 2010, Torres–Rosario was sentenced as an armed career criminal, 18 U.S.C. § 924(e), to 226 months in prison.

Torres–Rosario first contends that, given District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), section 922(g)(1) is an unconstitutional exercise of Congress's authority. Because the issue was not raised below, we would typically review only for plain error, United States v. Catalán–Roman, 585 F.3d 453, 463 n. 8 (1st Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3377, 176 L.Ed.2d 1262 (2010), but the claim implies actual innocence, will be a recurring issue and can here be resolved on the merits without affecting the outcome in the district.

The Supreme Court said that its opinions in Heller and McDonald “did not cast doubt on such longstanding regulatory measures as prohibition on the possession of firearms by felons.” McDonald, 130 S.Ct. at 3047 (internal quotation omitted). All of the circuits to face the issue post Heller have rejected blanket challenges to felon in possession laws. ¹ Although the Court may have qualified this approval by describing such longstanding bans as “presumptively lawful,” Heller, 554 U.S. at 627 n. 26, 128 S.Ct. 2783, we assume that at most that description reserves the possibility of yet to be developed qualifications.

Torres–Rosario does make what he describes as an as-applied challenge, saying that he has no prior convictions for any violent felony. “It is well-established that felons are more likely to commit violent crimes than are other law-abiding citizens.” Barton, 633 F.3d at 175. But—given the “presumptively lawful” reference in Heller—the Supreme Court may be open to claims that some felonies do not indicate potential violence and cannot be the basis for applying a categorical ban.

Possibly it might even be open to highly fact-specific objections. In Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009), the North Carolina Supreme Court held that Britt's conviction 30 years earlier, on a guilty plea to one count of possession of drugs with intent to distribute, was insufficient to deprive him of his right to keep and bear arms under the state constitution. But such an approach, applied to countless variations in individual circumstances, would obviously present serious problems of administration, consistency and fair warning.

In all events, two of Torres–Rosario's prior convictions were for serious drug offenses—distribution and possession with intent to distribute Class A controlled substances—and drug dealing is notoriously linked to violence. United States v. Luciano, 329 F.3d 1, 6 (1st Cir.2003); United States v. Green, 887 F.2d 25, 27 (1st Cir.1989). Assuming arguendo that the Supreme Court might find some felonies so tame and technical as to be insufficient to justify the ban, drug dealing is not likely to be among them.

In a quite different claim of error, Torres–Rosario takes issue with several statements of the government, made in its closing argument to the jury, along the following lines:

[I]n this case, there's only one reasonable inference, and that's that Mr. Rosario ... took possession and control of that gun and put it under the bed. And because of the government's evidence in this case, you know why he did it. The reason that he did that is that he is a drug dealer.... It is not in any way hard to understand why a drug dealer would want a gun in his room.

Torres–Rosario objected at trial and asserts on appeal that such comments were improper, adding that the court prevented a searching officer from giving “an opinion” as to whether the drugs found in the apartment were intended to be distributed.

The closing argument was not improper. The government had to establish that Torres–Rosario possessed the gun, and while much of the evidence including an admission pointed in that direction, his own defense sought to cast doubt on that charge. The discovery of drugs and baggies in Torres–Rosario's bedroom was in evidence—no objection was made to that—and the government was free to invite the jury to infer that Torres–Rosario dealt in drugs, furnishing a motive for him also to possess a gun to protect them.

The fact that he was not charged with drug crimes does not preclude the government from offering “other crime” evidence so long as it is relevant for some purpose other than propensity and “motive” is a traditional example listed in the rule itself. Fed.R.Evid. 404(b). Of course, the judge has authority to screen out such evidence where it is unduly prejudicial, Fed.R.Evid. 403; United States v. Smith, 292 F.3d 90, 100 (1st Cir.2002), cert. denied, 538 U.S. 933, 123 S.Ct. 1597, 155 L.Ed.2d 332 (2003), but that is not the present objection and the drugs' presence was already in evidence.

That the searching officer was not allowed to give his “opinion” is not inconsistent and is beside the point. There are various reasons why the judge might have excluded an opinion of this kind, one being that the jury needed no help in concluding that drugs and numerous baggies point toward distribution. The jury did not need an opinion from the officer to draw a common sense inference. Cf. United States v. Meadows, 571 F.3d 131, 145 (1st Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 569, 175 L.Ed.2d 394 (2009).

Torres–Rosario's next claim of error concerns excluded evidence. The thrust of Torres–Rosario's defense at trial was that Pellot's son Guerra, and not he, possessed the gun. In support of that theory, Waleska Torres, Torres–Rosario's sister, testified that she spent most of her time at Torres–Rosario's apartment and had seen Guerra with the gun but never Torres–Rosario. That testimony came in without objection.

However, the government did object on hearsay grounds when Waleska Torres further sought to testify that, apparently on the first occasion that Torres–Rosario saw Guerra holding the gun in the apartment, Torres–Rosario told Guerra that “he didn't want that weapon there.” This event had occurred a week or two before the police search that discovered the gun and drugs. The district court upheld an objection to the admissibility of the statement and, based on a subsequent colloquy, probably deemed it a hearsay statement which did not also qualify for the long-established state of mind exception.

The statement was certainly offered to suggest that Torres–Rosario himself associated Guerra with the gun. Confusion sometimes arises over use of the hearsay label where the statement taken literally is not “offered for the truth of the matter asserted” (here, Torres–Rosario's professed desire that the gun be removed) but its probative value depends (as here) indirectly on the declarant's veracity. Cf. 2 K. Broun, McCormick on Evidence § 246, at 130 (6th ed.2006). Even if classified as hearsay, it would seemingly be rescued by the exception for statements of “the declarant's then existing state of mind....” Fed.R.Evid. 803(3).

The government argued to the district judge and repeats here that the statement was not contemporaneous with the later seizure, and so does not show Torres–Rosario's state of mind at the relevant time. The contemporaneity requirement —that the statement evidence a “then existing” state of mind—is part of the rationale since spontaneity in expressing one's present state of mind is thought to reduce the risk of deception. United States v. Rivera–Hernández, 497 F.3d 71, 81 (1st Cir.2007). But if Guerra possessed the gun at the time of the statement, it might make more likely his possession of the gun at some later point.

The real difficulty is that, in the context of other evidence in the case, Guerra's sometime possession of the gun—which was already known to the jury by Waleska Torres' admitted testimony—did little to negate the overwhelming evidence that Torres–Rosario possessed the gun at the time of the drug seizure. It was found under Torres–Rosario's mattress and next to his wallet—Waleska Torres had told a police officer that Torres–Rosario had put the gun there—and Torres–Rosario admitted to the police that it was his gun. Against this, the excluded statement was almost useless, and its exclusion harmless by any standard.

There remains Torres–Rosario's most powerful objection on appeal, namely, to his sentence. This sentence was greatly increased because of the district court's findings that...