United States v. Mercedes-De La Cruz

• Decision Date: 26 May 2015
• Docket Number: No. 14–1186.,14–1186.
• Citation: 787 F.3d 61
• Parties: UNITED STATES of America, Appellee, v. Cecilio MERCEDES–DE LA CRUZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

787 F.3d 61

UNITED STATES of America, Appellee

v.Cecilio MERCEDES–DE LA CRUZ, Defendant, Appellant.

No. 14–1186.

United States Court of Appeals, First Circuit.

May 26, 2015.

Daniel N. Marx, with whom Robert E. Toone, Michele L. Adelman, Shrutih Ramlochan–Tewarie, and Foley Hoag LLP were on brief, for appellant.

Susan Z. Jorgensen, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

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

Opinion

LYNCH, Chief Judge.

This is the rare case in which we find on direct appeal that there was ineffective assistance of defense counsel and so vacate a conviction and remand for further proceedings.

Defendant Cecilio Mercedes–De La Cruz appeals his conviction and sentence for conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. Mercedes' primary argument as to his conviction, made under two doctrines, is that the government agents who arrested him lacked probable cause to do so. First, Mercedes contends that the failure of the district court to suppress incriminating statements that he made shortly after the arrest was plain error. Second, he argues that, in any event, the failure of his counsel to file a timely motion to suppress that evidence was a blatant display of ineffective assistance of counsel. Mercedes also challenges his sentence, arguing that the district court (1) improperly increased his sentence by making an unsupported finding that Mercedes was not truthful at his sentencing hearing and (2) erroneously failed to apply the safety valve under 18 U.S.C. § 3553(f).

We agree with Mercedes' ineffective assistance of counsel argument and need not reach the plain error issue, and so we vacate his conviction and remand for further proceedings. The record is sufficiently developed and the facts concerning the apparently unjustified arrest and counsel's failure to move to suppress are sufficiently egregious as to warrant relief. We also reach the issue of whether there was sentencing error, lest the error recur or have some lingering effect in the event of retrial.

I.

On the evening of September 16, 2012, federal agents conducted surveillance of a remote stretch of miles of coastline in the southeast region of Puerto Rico suspected to be an area of drug trafficking activity. The region was known to be a common debarkation point for drug shipments. It is a mountainous rural region with a lot of brush.

Customs and Border Patrol Agent Luis Capestany was patrolling Puerto Rico State Road 901, which runs near the coast. He encountered a white van “in three different locations in [a] very small amount of driving distance,” which he found suspicious. A vehicle registry check revealed that the van was registered to Jose Miguel Guzmán–De los Santos.¹

Around 3:30 A.M., Capestany learned from his superiors that there was a boat traveling toward the coast with its lights out. A helicopter spied the vessel near a point on the coast called Punta Toro. Capestany continued patrolling and encountered a gold Hyundai station wagon with 19–inch nickel chrome rims at a point where Road 901 intersected with a road going to the coast. The vehicle turned onto Road 901 and began driving northbound. Capestany found this suspicious in light of the time of night and the remote nature of the area. He ran the Hyundai's plates and discovered that they were registered to a Mazda.

Shortly afterward, Capestany saw three individuals run from the direction of the beach and “spe[e]d off” along Road 901 in a red two-door coupe. Capestany notified the other agents in the area of the suspicious activity he had observed.

By that time, the vessel which the agents had been monitoring had neared the coastline near Punta Toro. There is no evidence there had been previous drug encounters on the Punta Toro beach. Capestany called for backup, and he and seven other agents eventually made their way down a gravel road toward Punta Toro. They encountered approximately six residences along that road, which were inhabited and “well kept.”

Around 4:30 A.M., the agents encountered an abandoned red Ford Excursion stuck at the end of the gravel road. There were several containers of gasoline next to the vehicle, but the agents did not find any people or contraband nearby at that time. Capestany and five of the agents continued walking toward the shore along a grass trail, while two of the agents, Wilfredo Vega–Flecha and a municipal police officer, who were armed, stayed behind at the end of the gravel road to “mak[e] sure that nobody would try to take that vehicle out.”

Approximately half an hour later, in the darkness of the early morning in an unlit area, the two agents next to the Excursion heard a noise in a nearby wooded area. Vega had night-vision goggles and used them to observe an individual—later identified as Mercedes—walking out of the woods toward the Excursion. He did not observe any weapons with the man.

Mercedes could not see the agents because it was still dark. Vega testified that the two agents told Mercedes to stop, and “[h]e raised his hands, and we placed him under arrest ” (emphasis added). The government does not dispute that Mercedes was arrested immediately after Vega stopped him. There was no Terry stop; there was, rather, an immediate arrest.

The other six officers eventually discovered 33 bundles containing nearly 1000 kilograms of cocaine near a dry creek bed about 100 feet away from the Excursion. The boat that had apparently delivered the drugs was found abandoned in the sand with its lights on. However, Vega and his partner did not know about the discovery of the drugs or the boat at the time of Mercedes' arrest. At trial on direct examination, Vega said only that he saw Mercedes coming toward him, “told him to stop,” and arrested him. Vega did not mention any concern for officer safety. On cross-examination, when asked why he arrested Mercedes, Vega replied:

Well, first of all, he is in a place where there is a vehicle that is presumed to be in the drug trafficking. He doesn't know about the place because he seems to be from another places [sic ]. I don't know him. For my safety, I placed him under arrest.

Only after the arrest did the two officers search Mercedes; they found a wallet with identification and $20 cash. They found no weapons. They saw that Mercedes was wet from the waist down. Vega asked Mercedes, “How many are you?” Mercedes did not respond, and Vega asked him again. Mercedes said, “Four.” Vega then asked (again twice) how much Mercedes had been paid “to do this job.” Mercedes responded, “$1,000.”

At that time, several other officers arrived on the scene, and Vega instructed them to take Mercedes and “place him in a cell at the Maunabo station house.” Mercedes was later taken from Maunabo to the Puerto Rico Police Marine Unit in Humacao, and then to the main office of Homeland Security Investigations in Miramar. Mercedes was handcuffed while in the vehicle.

Upon Mercedes' arrival in Miramar, a Homeland Security investigator, Angel Ortiz, led Mercedes to a detention cell area. At that point, Ortiz testified, Mercedes made “several spontaneous statements” that he had “done this for $1,000” and that “he really didn't know who the owners were of whatever it was that he was doing.” Ortiz stopped Mercedes from speaking because Ortiz had not yet administered Mercedes his Miranda rights, nor had anyone else.

Once the group reached a processing cell, Ortiz read Mercedes his Miranda rights and had him sign forms indicating that Mercedes understood his rights and would waive them. Ortiz then interviewed Mercedes. Mercedes recounted that a person had approached him on the previous day and asked him “if he wanted to make $1,000”; that he had traveled to the coast in a van and helped unload white sacks from the boat on the coast; and that all of the men unloading the boat's cargo had run away when they saw a helicopter approaching the vessel. Mercedes indicated that, after he started running, the “next thing he knew [was] that two police officers had apprehended him.”

Mercedes and co-defendants Guzmán and Victor Manuel Carela² were indicted on September 27, 2012, on two charges: conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. The district court issued a scheduling order requiring all motions to suppress to be filed by “November 2, 2012 or, if the case is continued, no later than fourteen (14) days before the trial date.” Counsel for Guzmán and Carela both filed motions to suppress statements their clients had made during and after their arrests on the grounds that their arrests were illegal. The co-defendants' motions were based on very different facts far less favorable to those defendants than the facts were as to Mercedes. The district court denied both motions. Mercedes' counsel did not file a motion to suppress.

There were two trials in this case; the first began on April 15, 2013. On the first day of that trial, before the jury was brought into the courtroom, Mercedes' counsel referred to the government's motion in limine, which had asked the court to “preclude the defendants from presenting, at trial, any argument as to the legality of their questioning by law enforcement officers.” In that motion, the government had repeated the district court's observation (made in its ruling on the co-defendants' motions to suppress) that Mercedes had waived his right to file a motion to suppress by failing to file one by the court-imposed deadline. Mercedes' counsel acknowledged that he had not filed a motion to suppress, but stated that Mercedes “ha[d] waived no right” and directed the court's attention to the Supreme Court's decision in Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986).³

The district court asked Mercedes'...