U.S. v. Valerio

• Decision Date: 09 February 1994
• Docket Number: Nos. 94-1708,94-1709,s. 94-1708
• Parties: UNITED STATES, Appellee, v. Maria VALERIO, Defendant, Appellant. UNITED STATES, Appellee, v. Domingo BAEZ, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 58

48 F.3d 58

UNITED STATES, Appellee, v. Maria VALERIO, Defendant, Appellant.

UNITED STATES, Appellee, v. Domingo BAEZ, Defendant, Appellant.

Nos. 94-1708, 94-1709.

United States Court of Appeals First Circuit.

Heard Feb. 9, 1994.

Decided Feb. 27, 1995.

William T. Murphy, for appellant Maria Valerio.

Ernest J. Barone, for appellant Domingo Baez.

Lawrence D. Gaynor, Asst. U.S. Atty., with whom Sheldon Whitehouse, U.S. Atty., was on brief for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

Following a five-day jury trial, defendants-appellants Domingo Baez and Maria Valerio were convicted of possession of cocaine with intent to distribute and conspiracy to commit the same offense. Baez also was convicted of being an illegal alien in possession of a firearm. Baez challenges his convictions, asserting that he was deprived of a fair trial because of (1) the district court's failure to hold an in camera hearing to determine the truthfulness of a search warrant affidavit; and (2) a duplicitous count in his indictment. Valerio also challenges her convictions, contending that the evidence was insufficient to support them. After carefully reading the record and considering the parties' arguments, we affirm Baez's convictions and reverse Valerio's.

I.

A. Background Facts

Because this case involves a challenge to criminal convictions, we interpret the evidence in the light most amenable to the government. See United States v. Ortiz, 23 F.3d 21, 23 (1st Cir.1994).

Prior to July 21, 1993, Providence Police Detective Stanley Nadrowski, pursuant to an on-going investigation, led a police team that conducted several surveillances of apartment buildings at 165 Peace Street, Providence, Rhode Island, and 49 Marden Street, Cranston, Rhode Island. The team also surveilled a gray Chevrolet with Rhode Island license plate YC-243, which was seen at both addresses.

At approximately 7:00 p.m. on July 21, 1993, in the course of one of these surveillances, Nadrowski noticed Baez leave 165 Peace Street, enter the gray Chevrolet, and drive off. Nadrowski and several other members of the surveillance team followed Baez to 49 Marden Street, which they saw him enter. Subsequently, the police officers observed Baez exit the building and drive onto Route 10. They followed him into Providence, where he turned onto Westminster Street. At this point, the police stopped him. Baez got out of his vehicle and dropped a plastic bag containing 13.9 grams of cocaine to the ground. The police then arrested him. In Baez's right front pants pocket, the officers found a set of keys containing keys to 165 Peace Street and 49 Marden Street. One of the keys was labeled "49 Marden Street # 7."

At the time of Baez's arrest, the police had already obtained a search warrant for 165 Peace Street. After his arrest, the police also obtained a warrant for Apartment 7 at 49 Marden Street. The Marden Street warrant was executed first, and the search of those premises led to the discovery of 515.6 grams of cocaine, along with a Tanita scale of the type used to weigh narcotics. The cocaine was found in a Brillo box underneath a nightstand in the bedroom; on top of an adjoining bureau was a picture of Baez.

After the search of 49 Marden Street, the police executed the search warrant for the first floor right apartment at 165 Peace Street. Valerio and a baby were present in the apartment at the time the search was executed. Nadrowski searched the only bedroom in the apartment, and found men's and women's clothing, two pairs of Baez's shorts, photo albums containing pictures of Baez and Valerio, a woman's flowered purse, identification cards and rent receipts in Valerio's name, a child's health records to which Valerio's name was affixed, and a bassinet. He and the other officers also found 73.24 grams of cocaine and an operable, unloaded .357 handgun. Most of the cocaine was found in the lining under the seat cushion of a chair next to the bed; 14.83 grams of it, however, were found inside a baby's shoe, which was on a bedroom shelf. The gun was next to the cocaine in the chair lining. At the conclusion of this search, Valerio was arrested.

At trial, the landlord of 165 Peace Street testified that Baez had rented the apartment in April, 1993, and that Baez had requested that the rent receipts be issued in the name of Maria Valerio. The receipts bearing Valerio's name were introduced with a cautionary instruction from the court that they could be considered in connection with Baez's case, but not Valerio's. The landlord testified that he saw Baez two or three times between April, 1993 and the day of the arrest. He also testified that he had never seen Valerio before the night of her arrest. This testimony was consistent with Baez's testimony that Valerio was not a long-term occupant of the apartment, but had been visiting him from New York for the two or three days prior to her arrest.

B. Proceedings Below

On November 9, 1993, Baez and Valerio were arraigned on a superseding, three-count indictment. Count I charged them with conspiracy to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846; Count II charged them with the underlying offense of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1); Count III charged them with being illegal aliens in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(5).

The defendants moved to suppress the cocaine and firearm that were the subject of the superseding indictment. The district court denied the motion. Subsequently, Baez renewed his suppression request, alleging for the first time that the affidavits submitted in support of the search warrants were false. He accordingly requested a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978) (summarizing showing a defendant must make to be entitled to a hearing on the adequacy of a warrant affidavit). On January 28, 1994, the court granted the motion for a Franks hearing and held a portion of it. On February 3, 1994, the court concluded the hearing and denied Baez's motion to suppress. At that same time, the court stated on the record that it had been a mistake to grant Baez a Franks hearing in the first place.

On February 16, 1994, trial began. Prior to trial, the government moved to dismiss Count III of the indictment against Valerio. The district court granted the motion. On March 1, 1994, the jury found Baez guilty on all three counts of the indictment and found Valerio guilty on Counts I and II. On June 17, 1994, the district court sentenced Baez to 121 months in prison, five years of supervised release, and $150 in special assessments. That same day, the court sentenced Valerio to 13 months in prison, five years of supervised release, and $100 in special assessments. The court also ordered the defendants presented for deportation as a condition of their supervised release. This appeal followed.

II. Baez's Appeal

Baez makes two arguments on appeal. First, he contends that the district court erred in declining his request, made at the conclusion of the Franks hearing, to conduct an in camera proceeding at which the court would ask the search warrant affiant submitted questions designed to impeach the affiant's credibility. Second, he claims that Count II of the superseding indictment was duplicitous. It is Baez's position that the error regarding the in camera hearing requires that we set aside all three of his convictions, and that the duplicitous count in the indictment requires that we set aside his possession and conspiracy convictions. The arguments are without merit.

A. The Requested In Camera Hearing

The affidavits submitted in support of the applications for warrants to search 49 Marden Street and 165 Peace Street stated, inter alia, that the affiant, Detective Nadrowski, had received information from a confidential informant that a Hispanic male (who turned out to be Baez) was distributing cocaine out of the first floor right apartment at 165 Peace Street. The affidavits also stated that this same confidential informant, under police supervision, had made two recent controlled purchases of cocaine in Baez's gray Chevrolet at a prearranged location. In moving for a Franks hearing, Baez challenged the veracity of these statements, submitting as proof an affidavit of his own which swore that he had never sold drugs to anyone at a prearranged location. The sum and substance of Baez's position was that Nadrowski had fabricated the confidential informant's existence.

Calling Baez's showing "marginal," the district court nonetheless ruled that Baez's affidavit was substantial enough to warrant a Franks hearing. See Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676 (defendant is entitled to Franks hearing if s/he can make a "substantial preliminary showing" that (1) a statement in a warrant affidavit was knowingly or intentionally false, or made with reckless disregard for the truth; and (2) the falsehood was necessary to the finding of probable cause); see also United States v. Hadfield, 918 F.2d 987, 992 (1st Cir.1990), cert. denied, 500 U.S. 936, 111 S.Ct. 2062, 114 L.Ed.2d 466 (1991). Baez and Nadrowski testified at the hearing, and both gave accounts entirely consistent with their affidavits. Baez also provided testimony elaborating on the reason for his entering 49 Marden Street prior to his arrest. ¹ He stated that he had gone to the building (for the third time that day) in order to retrieve a telephone bill for the renters of Apartment 7, who were out of town and had asked him to retrieve and to safeguard the bill. He also stated that he did not know when they would return.

Recognizing that he had not carried his burden of proving that the warrant affidavits were infected by falsehoods, Baez asked, at the conclusion of the...