United States v. Guerrier, 10–2315.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtTHOMPSON
Citation669 F.3d 1
PartiesUNITED STATES of America, Appellee, v. Viggens GUERRIER, Defendant, Appellant.
Docket NumberNo. 10–2315.,10–2315.
Decision Date22 December 2011

669 F.3d 1

UNITED STATES of America, Appellee,
Viggens GUERRIER, Defendant, Appellant.

No. 10–2315.

United States Court of Appeals, First Circuit.

Heard Sept. 8, 2011.Decided Dec. 22, 2011.

[669 F.3d 3]

Leslie W. O'Brien for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.


Around midnight on a January evening in 2009, Viggens Guerrier and Christian German ducked into a crack house at 371 Manchester Street in Manchester, New Hampshire, looking for Dwight Bennett, a drug dealer who made a living taking crack from New York to New Hampshire for sale there.1 They found him, and an irate German then robbed him of $1,500 and 10 grams of crack at gunpoint while Guerrier stood guard at the crack-house door. The backstory behind this—the “CliffsNotes” version, at least—is easily told. German was himself a drug dealer of some notoriety, and he and his drug-pushing partner, Jay Galeano, had agreed to let Bennett sell crack out of that house to their clients, provided they got a piece of the action.2 But Bennett did not pay up, which is why German grabbed his old friend Guerrier (for extra muscle, just in case) and strode into the crack house that fateful night, with a gun at the ready.

Law enforcement later collared the duo, and, with German's help, a jury convicted Guerrier of conspiring to violate the Hobbs Act (sometimes called the “Act,” for easy reading)—a statute that (among other things) makes a federal crime out of robbery or conspiracy to rob that “in any way or degree obstructs, delays, or affects” interstate or international commerce. See 18 U.S.C. § 1951(a)–(b). Guerrier now appeals his conviction (but not his sentence of 6 1/2 years in prison plus 3 years of supervised release), raising four issues, none of which requires reversal.

Sufficiency of the Indictment

Citing Federal Rule of Criminal Procedure 12(b), Guerrier moved pretrial to dismiss the indictment. Prosecutors had produced no evidence during discovery that his acts had affected interstate commerce, leaving them unable to satisfy the Act's jurisdictional prerequisite—or so he claimed. The district judge made quick work of Guerrier's motion, denying it in a margin order. And our de novo review of this legal issue, see, e.g., United States v. Lopez–Lopez, 282 F.3d 1, 9 (1st Cir.2002), convinces us that the judge got the matter exactly right.

When grading an indictment's sufficiency, we look to see whether the document sketches out the elements of the crime and the nature of the charge so that the defendant can prepare a defense and plead double jeopardy in any future prosecution for the same offense. See, e.g., United States v. Eirby, 262 F.3d 31, 37–38 (1st Cir.2001). Guerrier does not suggest that his indictment flunks this test. And his attempt to sink a facially valid indictment with a motion to dismiss that targets the strength of the government's evidence misfires.

What counts in situations like this are the charging paper's allegations, which we

[669 F.3d 4]

must assume are true. See, e.g., United States v. Bohai Trading Co., 45 F.3d 577, 578 n. 1 (1st Cir.1995). Consistent with that rule, courts routinely rebuff efforts to use a motion to dismiss as a way to test the sufficiency of the evidence behind an indictment's allegations, see, e.g., United States v. Moore, 563 F.3d 583, 586 (7th Cir.2009); United States v. Todd, 446 F.3d 1062, 1067 (10th Cir.2006); United States v. Salman, 378 F.3d 1266, 1268 (11th Cir.2004) (per curiam); United States v. De Laurentis, 230 F.3d 659, 660 (3d Cir.2000); United States v. Jensen, 93 F.3d 667, 669 (9th Cir.1996); United States v. Mann, 517 F.2d 259, 267 (5th Cir.1975)—even when the challenge centers on the adequacy of the evidence concerning the interstate-commerce aspects of a Hobbs–Act offense, see United States v. Alfonso, 143 F.3d 772, 776–77 (2d Cir.1998) (stressing that unless prosecutors have “made what can fairly be described as a full proffer of the evidence [they] intend[ ] to present at trial to satisfy the jurisdictional element of the offense, the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment”).3 Ultimately, we can do no better than repeat what the Supreme Court said in a related context over 55 years ago: in the ordinary course of events, a technically sufficient indictment handed down by a duly empaneled grand jury “is enough to call for trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (explaining that the Fifth Amendment's grand-jury guarantee does not give defendants the right to a “preliminary trial to determine the competency and adequacy of the evidence” undergirding the indictment). Tellingly, Guerrier cites no cases supporting his position, and, unsurprisingly, we know of none either. The net result is that the judge correctly denied Guerrier's motion to dismiss the indictment.

Un–Mirandized Statements

Guerrier also moved pretrial to suppress prearrest statements made during an interview with his parole officer and two law-enforcement agents. His argument was a simple one: under the totality of the circumstances, they had had him “in custody” and therefore should have advised him of his Miranda rights before they began asking questions. Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Guerrier did not testify at the suppression hearing. But the parole and law-enforcement officers did, and this is what they say happened, as credited by the judge (and he committed no clear error in doing that, see, e.g., United States v. Hughes, 640 F.3d 428, 434 (1st Cir.2011)):

Looking into the Bennett robbery, officers heard that German and Guerrier had probably done it. German was no stranger to police. They had pegged him as the chief culprit in a slew of other drug-dealer robberies, and they wanted Guerrier to help nail him. Having learned that Guerrier was on parole from a prior drug-related offense, FBI Special Agent Michael Schneider asked Guerrier's parole officer, Marc O'Donoghue, to help set up an interview. And O'Donoghue did what he could.

At Guerrier's next regularly-scheduled parole meeting, Schneider and a colleague, Manchester Detective Steven Coco, showed up—dressed in plain clothes with

[669 F.3d 5]

their weapons concealed—and camped outside O'Donoghue's office while O'Donoghue told Guerrier that some men wanted to see him. O'Donoghue then walked Guerrier over to Schneider and Coco, who introduced themselves as law-enforcement agents. Schneider calmly told Guerrier that they wanted to speak with him about a matter unrelated to his parole status, that he was not under arrest, and that he did not have to talk to them if he did not want to. But if he was game, Schneider added, they could chat over a cup of coffee in a more relaxed setting. Guerrier said okay, or something to that effect.

The foursome—Schneider, Coco, O'Donoghue, and Guerrier—got into Schneider's unmarked Ford Explorer. Schneider drove, Coco rode in the front passenger seat, and Guerrier and O'Donoghue sat in back. Keeping the doors unlocked, Schneider cruised to a Dunkin Donuts, about five minutes away from O'Donoghue's office. He bought Guerrier a hot chocolate at the drive-thru and then parked in a nearby strip-mall parking lot. Other people were milling about there.

Turning to Guerrier, Schneider thanked him for taking the time out of his day to tag along with them and, in a low-key way, said that they hoped he could help them with the Bennett robbery. But Schneider stressed to him that he did not have to say anything to them if he did not feel like it, that he was not under arrest, and that they would drive him wherever he wanted if he wanted out. Guerrier piped in, saying that German had asked for his help in collecting some money, that he had driven him to 371 Manchester Street, and that he had seen him take Bennett into a bedroom. But he adamantly insisted that he knew nothing about a robbery.

That did not go over well with Schneider, because some of what Guerrier said clashed with what law enforcement knew. Schneider was “frustrated,” though he stayed calm as he laid out for Guerrier the evidence against him. Actually, neither Schneider nor the others ever yelled at Guerrier or threatened to arrest him. Also, Guerrier never looked nervous or scared, and he never asked to stop the interview, which lasted 20 to 25 minutes.

Once Schneider realized that he was not getting anywhere with Guerrier, he offered to drop Guerrier off at a place of his (Guerrier's) choosing. O'Donoghue then spoke up, saying that he still had to conduct his previously-scheduled meeting with Guerrier, so Schneider drove them back to O'Donoghue's office. When their meeting ended, O'Donoghue arrested Guerrier for failing a drug test two months earlier and for visiting 371 Manchester Street, a well-known crack house. That was the first Guerrier had heard about the failed drug test. And neither Schneider nor Coco knew that O'Donoghue was going to arrest Guerrier.

Everyone pretty much knows that the Miranda rule tells police not to question a suspect in custody unless they first advise him of his right to remain silent, among other things. Miranda, 384 U.S. at 478–79, 86 S.Ct. 1602; accord Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curium). Following the evidentiary hearing, the judge here concluded that Miranda was not in play because the complained-of interview was not custodial and Guerrier's statements “were completely voluntary,” so he orally denied the motion. Guerrier takes issue with this ruling. As always, we review the judge's factfinding under the...

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