United States v. Cruz-Rivera

Decision Date15 September 2021
Docket NumberNo. 19-1465, No. 19-1509,19-1465
Citation14 F.4th 32
Parties UNITED STATES of America, Appellee, v. Ivan CRUZ-RIVERA, Defendant, Appellant. United States of America, Appellee, v. Carlos Jimenez, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Syrie D. Fried, with whom Good Schneider Cormier & Fried was on brief, for appellant Cruz-Rivera.

Jamesa J. Drake, with whom Drake Law LLC was on brief, for appellant Jimenez.

Andrew C. Noll, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Robert A. Zink, Acting Deputy Assistant Attorney General, Michelle L. Dineen Jerrett and Donald C. Lockhart, Assistant United States Attorneys, Brian C. Rabbitt, Acting Assistant Attorney General, and Andrew E. Lelling, United States Attorney, were on brief, for appellee.

Before Howard, Chief Judge, Thompson, Circuit Judge, and Katzmann,* Judge.

KATZMANN, Judge.

A jury convicted defendants Ivan Cruz-Rivera ("Cruz-Rivera") and Carlos Jimenez ("Jimenez") each of one count of conspiracy to possess with intent to distribute and to distribute one hundred grams or more of heroin, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Defendants now appeal, assigning error by the district court. Before us are claims that (1) evidence obtained during a traffic stop should have been suppressed, (2) the district court erroneously limited cross-examination of a witness for the government at trial, (3) the prosecutor unfairly misconstrued or misstated facts not in evidence during closing arguments, (4) the district court incorrectly instructed the jury in response to a question, and (5) the district court erred in applying the mandatory minimum sentence to Jimenez. We affirm.

I. BACKGROUND
A. Facts

The facts are largely undisputed. "We rehearse the facts as found by the district court (explicitly or implicitly) at the suppression hearing, consistent with record support." United States v. Arnott, 758 F.3d 40, 41 (1st Cir. 2014) (citing United States v. Gonzalez, 609 F.3d 13, 15 (1st Cir. 2010) ). On October 4, 2013, the DEA's Central Massachusetts Federal Drug Task Force set up a surveillance of a controlled purchase by a confidential source at 105-107 Union Street in Leominster, Massachusetts, a property with several individual garage bays, as part of an investigation into heroin distribution in the Worcester, Massachusetts area. Equipped with audiovisual recording equipment, body- and dash-cams, officers witnessed Jimenez, accompanied by Cruz-Rivera, drive to the Union Street garages in a gray Lexus. There, according to the government, they visited Segundo Gutierrez, a known heroin dealer in Central Massachusetts, who rented a garage bay at Union Street. Cruz-Rivera and Gutierrez exchanged messages and phone calls on October 4, and in the days prior.

Earlier on October 4, a confidential source working with the Task Force visited Gutierrez's garage bay seeking to purchase heroin. Gutierrez told the source that he did not have heroin but would a short time later. The confidential source left the garage. Task Force agents then witnessed Gutierrez wave a gray Lexus with a New Jersey license plate into the Union Street garages. The men spent nearly two hours at the garage, and left shortly after 2:00 p.m. During this time, several other cars came and went from the Union Street garages. Upon exiting the Union Street garages, Gutierrez directed the gray Lexus towards the highway. The confidential source then returned to the garage, where Gutierrez sold him over 125 grams of heroin in exchange for $7,500.

An officer on the surveillance team, Massachusetts State Trooper Jake Vitale, followed the Lexus after it left the Union Street garages in the officer's unmarked vehicle. Vitale communicated with the lead officer of the DEA investigation and received instructions to stop the Lexus via a "walled-off" stop, a stop not based on any information connected to the visit at the Union Street garages. Trooper Vitale followed the Lexus for an hour until it approached Route 84, and then, via the Massachusetts State Police, informed State Trooper David DiCrescenzo of his pursuit and investigation at the Union Street garages. Trooper Vitale instructed Trooper DiCrescenzo to stop the vehicle in order to identify the occupants, but to do so based on his own development of probable cause. Trooper DiCrescenzo was trained to conduct motor vehicle stops and criminal investigations and to detect indicators of criminal activity, and had conducted a number of narcotics investigations. After waiting in the median of Route 84 -- a road which Trooper DiCrescenzo testified was a known drug-trafficking thoroughfare, -- he spotted and followed the Lexus until, at about 3:15 p.m., he observed the Lexus change lanes without using a turn signal within two to three lengths of a vehicle in the middle lane. Trooper DiCrescenzo then stopped the Lexus and identified the driver as Jimenez with Cruz-Rivera as passenger.

Trooper DiCrescenzo then questioned defendants, during which time he witnessed defendants acting "extremely nervous" and "physically shaking." After running the license plate of the Lexus and driver's license numbers for defendants in state databases, Trooper DiCrescenzo asked Jimenez to step out of the vehicle for further questioning by a guardrail, which lasted a couple of minutes. The vehicle was coming from a known drug distribution area. Jimenez provided inconsistent testimony about his whereabouts that day and explained that he and Cruz-Rivera had cash in the car for the purpose of purchasing a truck. After he finished questioning Jimenez, Trooper DiCrescenzo placed Jimenez in the back of his patrol car, informing him that it was for his safety (as well as for Trooper DiCrescenzo's safety) and that he was not under arrest. Trooper DiCrescenzo then asked Cruz-Rivera to step out of the car for further questioning, part of which was done via translation by another, Spanish-speaking officer over the phone. Cruz-Rivera indicated that there was $1,000 in the car, and pointed Trooper DiCrescenzo to a black bag on the back seat, in which Trooper DiCrescenzo then witnessed bundles of cash secured with elastic bands. Jimenez then consented to a search of the vehicle. Upon searching the Lexus, officers discovered $44,000 in bundles of cash and three cell phones. Other officers arrived at the scene to assist with the search, including a K-9 unit. The officers seized the black bag containing the cash and one cell phone, and two additional cell phones found under the front passenger seat. Cruz-Rivera and Jimenez were then permitted to leave in the Lexus. Gutierrez and Jimenez exchanged several phone calls that afternoon and evening. The next day, Cruz-Rivera and Jimenez went to retrieve a receipt for the $44,000 in cash seized during the stop.

B. Proceedings

In June 2016, Cruz-Rivera and Jimenez were charged by a grand jury each of one count of conspiracy to possess with intent to distribute and to distribute heroin, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Prior to trial, Cruz-Rivera and Jimenez each moved to suppress evidence seized and statements made to law enforcement officers during the October 4, 2013, traffic stop. The district court denied the motions to suppress. The case proceeded to trial where the jury heard testimony from several witnessing officers and Gutierrez, and reviewed body- and dash-cam footage and cell phone records. Cruz-Rivera also testified in his defense, claiming that the money seized by police was his own and that his visit to Gutierrez was for the purposes of finding a truck that he could purchase. The parties then presented closing arguments and the jury deliberated, after which it found both Cruz-Rivera and Jimenez guilty of conspiracy involving one hundred grams or more of heroin (count 1) and possession with intent to distribute heroin (count 2). The district court sentenced Cruz-Rivera to seventy-six months of imprisonment, followed by supervised release, and Jimenez to sixty months of imprisonment, followed by supervised release.

II. DISCUSSION

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the district court's findings of fact for clear error and accept all reasonable inferences that it has drawn. See United States v. Coombs, 857 F.3d 439, 445–46 (1st Cir. 2017) (citing United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994) ; then citing United States v. Paneto, 661 F.3d 709, 711 (1st Cir. 2011) ). We recount the facts here "in the light most favorable to the suppression ruling" as one of the challenges addressed in this opinion is to the admissibility of certain key evidence. Arnott, 758 F.3d at 43 (first citing United States v. McGregor, 650 F.3d 813, 823–24 (1st Cir. 2011) ; and then citing United States v. Owens, 167 F.3d 739, 743 (1st Cir. 1999) ). We review the district court's legal conclusions de novo. Id.

A. Suppression Ruling

First, defendants challenge the district court's pre-trial rulings denying their motions to suppress evidence. Specifically, they challenge the admission of evidence collected as a result of the search of the car -- the bundled cash and cell phones -- and challenge the admission of their statements during the traffic stop into evidence. When reviewing a suppression ruling, the district court's findings of fact are reviewed for clear error and "the court's legal conclusions, including its answers to ‘the ultimate questions of reasonable suspicion and probable cause to make a warrantless search’ " are reviewed de novo. Id. (quoting Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ). Similarly, when reviewing whether a defendant was in custody for Miranda purposes, factual questions are reviewed for clear...

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