United States Court of Appeals
For the First Circuit
No. 19-1465
UNITED STATES OF AMERICA,
Appellee,
v.
IVAN CRUZ-RIVERA,
Defendant, Appellant.
No. 19-1509
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS JIMENEZ,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson, Circuit Judge,
and Katzmann, Judge.
Of the United States Court of International Trade, sitting
by designation.
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.
September 15, 2021
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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
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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
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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
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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
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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
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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
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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 (1996)).
Similarly, when reviewing whether a defendant was in custody for
Miranda purposes, factual questions are reviewed for clear error
and the ultimate legal question de novo. United States v.
Campbell,
741 F.3d 251, 265 (1st Cir. 2013) (citing United States
v. Hughes,
640 F.3d 428, 435 (1st Cir. 2011)). Furthermore, we
review "the record evidence in the light most favorable to the
suppression ruling," and we can affirm "on any basis apparent in
the record." Arnott,
758 F.3d at 43. "Given the textured nature
of these inquiries, appellate courts must proceed circumspectly
and with regard for the district court's superior vantage point."
United States v. Espinoza,
490 F.3d 41, 46 (1st Cir. 2007) (citing
Zapata,
18 F.3d at 975 (instructing that, when reviewing the
outcome of a motion to suppress, appellate courts must "exhibit
great respect for the presider's opportunity to hear the testimony,
observe the witnesses' demeanor, and evaluate the facts at first
hand")).
1. Evidence Seized During the Traffic Stop
a. The district court ruling.
The district court, relying on Whren v. United States,
517 U.S. 806 (1996), concluded that the traffic stop was lawful in
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nature because Trooper DiCrescenzo observed two traffic violations
prior to stopping the Lexus. The district court found that "the
collective knowledge doctrine provided sufficient reason to stop
the motor vehicle and to search it."1 The court determined that
the DEA Task Force Officers surveilling the Union Street garages
possessed "ample probable cause" to believe that defendants were
engaged in criminal activity, that the car contained related drugs
and money, that this knowledge was imputed to Trooper DiCrescenzo
under the collective knowledge doctrine, which allowed the
evidence produced by the eventual stop to be seized and admitted
at trial.
1 The court found that
[a]t the time that the Lexus was stopped, the DEA
had been involved in investigation spanning over
seventeen months during which six controlled
purchases of heroin had taken place from an
individual whom the task force believed was being
supplied by Gutierrez, from the Union Street
address. The CS [confidential source] went to that
address and attempted to purchase 125 grams of
heroin. Gutierrez told the CS that he was expecting
a delivery by 1:30 p.m. The Task Force observed
him on his cellphone giving directions, and shortly
thereafter surveillance saw the Lexus enter the
garages and leave 2 hours later. When the CS
returned to the garage shortly after the Lexus
left, he bought heroin and was told by Gutierrez
that the marks on his face were from the mask that
he was wearing while he processed the heroin.
These facts provide ample probable cause for the
stop and search.
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b. Basic principles.
The automobile exception to the Fourth Amendment's
warrant requirement permits officers to "seize and search an
automobile prior to obtaining a warrant where they have probable
cause to believe that the automobile contains contraband." United
States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014) (first citing
Robinson v. Cook,
706 F.3d 25, 31-32 (1st Cir. 2013); and then
citing Florida v. White,
526 U.S. 559, 563–64 (1999)). Police
have probable cause to search "where the known facts and
circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime will
be found." Ornelas,
517 U.S. at 696; United States v. Azor,
881
F.3d 1, 8 (1st Cir. 2017). "Probable cause exists when 'the facts
and circumstances as to which police have reasonably trustworthy
information are sufficient to warrant a person of reasonable
caution in the belief that evidence of a crime will be found.'"
Silva,
742 F.3d at 7 (quoting Robinson,
706 F.3d at 32). Search
of a motor vehicle requires "particular facts indicating that, at
the time of search, the vehicle or a container within it carried
contraband, evidence of crime, or other seizable matter." United
States v. Infante-Ruiz,
13 F.3d 498, 502 (1st Cir. 1994).
A temporary detention of an individual during a traffic
stop by police constitutes a seizure to which the protections of
the Fourth Amendment apply. Delaware v. Prouse, 440 U.S. 648, 653
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(1979) (first citing United States v. Martinez-Fuerte, 428 U.S.
543, 556–58 (1976); then citing United States v. Brignoni-Ponce,
422 U.S. 873, 878 (1975); and then citing Terry v. Ohio,
392 U.S.
1, 16 (1968)). A warrantless traffic stop must "not be
'unreasonable' under the circumstances." Whren,
517 U.S. at 810.
"[T]he decision to stop an automobile is reasonable where the
police have probable cause to believe that a traffic violation has
occurred."
Id. (citing Prouse,
440 U.S. at 659). A traffic stop
is a "relatively brief encounter" intended to "address the traffic
violation that warranted the stop" and may include "checking the
driver's license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile's
registration and proof of insurance." Rodriguez v. United States,
575 U.S. 348, 354–55 (2015) (first quoting Knowles v. Iowa,
525
U.S. 113, 117 (1998); then citing Illinois v. Caballes,
543 U.S.
405, 407 (2005); then citing Prouse, 440 U.S. at 658–60). However,
such a stop can be extended where there is reasonable suspicion of
further criminal wrongdoing. United States v. Lee,
317 F.3d 26,
33 (1st Cir. 2003) (citing United States v. Velez-Saldana,
252
F.3d 49, 53 (1st Cir. 2001); United States v. Martinez-Molina,
64
F.3d 719, 727–30 (1st Cir. 1995)). "No simple, mechanical formula
tells us what reasonable suspicion is, though we know that it is
less than probable cause and more than a naked hunch . . . .
[C]ourts must gauge its presence in a commonsense, case-by-case
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way, taking in the whole picture." McGregor, 650 F.3d at 821. We
have said that the reasonableness "determination . . . entails a
measurable degree of deference to the perceptions of experienced
law enforcement officers." United States v. Ruidíaz,
529 F.3d 25,
29 (1st Cir. 2008) (citing Ornelas,
517 U.S. at 699; United States
v. Chhien,
266 F.3d 1, 8 (1st Cir. 2001)). Reasonable suspicion
is based on the totality of the circumstances. Florida v. Harris,
568 U.S. 237, 244 (2013); Infante-Ruiz,
13 F.3d at 502.
Reasonable suspicion or probable cause may be based on
the collective knowledge of several officers. United States v.
Hensley, 469 U.S. 221, 231–32 (1985); United States v. Barnes,
506
F.3d 58, 62–63 (1st Cir. 2007). In such cases, we "look to the
collective information known to the law enforcement officers
participating in the investigation rather than isolat[ing] the
information known by the individual arresting officer." Azor,
881
F.3d at 8 (citing Illinois v. Andrea,
463 U.S. 765, 772 n.5 (1983);
United States v. Fiasconaro,
315 F.3d 28, 36 (1st Cir. 2002));
Barnes,
506 F.3d at 62.
c. Analysis.
Both Cruz-Rivera and Jimenez argue that the district
court's conclusion that probable cause supported the traffic stop,
search, and detention of defendants was erroneous, viewed either
through Trooper DiCrescenzo's own reasonable suspicion during the
traffic stop or when considered in conjunction with the collective
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knowledge imparted to Trooper DiCrescenzo. Thus, they each
contend that the physical evidence collected and statements made
during the stop should have been suppressed. The government
counters that the district court did not err and that in any event
there was an alternative ground to sustain the denial of the motion
to suppress -- namely, that the reasonable suspicion that supported
the traffic stop evolved and ripened into probable cause to search
the vehicle as Trooper DiCrescenzo evaluated defendants' actions
and responses during the stop. We agree with the outcome reached
by the district court, but for reasons different from those
articulated in the suppression decision. Given that we can
sustain a ruling based on alternate grounds not articulated by the
trial court, so long as there is persuasive support for that
analysis in the record, we will do so here, particularly where
that route is more direct to the "same destination." Arnott, 758
F.3d at 43.
First, defendants' argument that it is important to
consider the differences between the "walled-off" stop here and a
traffic stop that begins without an "investigatory motive," is
unavailing. Under our case law, as defendants acknowledge, "[a]n
officer can stop a car if he sees a driver commit a traffic offense,
even if the stop is just an excuse to investigate something else."
McGregor, 650 F.3d at 820 (citing Whren,
517 U.S. at 810); see
also
id. at 822 ("[C]ourts do not 'plumb[ ]' an officer's 'actual
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motive' in performing a reasonable-suspicion analysis." (second
alteration in original) (quoting Bolton v. Taylor, 367 F.3d 5, 7
(1st Cir. 2004))); Ruidíaz,
529 F.3d at 29 (reasonableness in the
traffic-stop context is "not dependent on an individual officer's
subjective motives"). Defendants acknowledge that Trooper
DiCrescenzo had a sufficient basis to initiate the traffic stop
based on the traffic violation.
Regardless of the collective knowledge of all officers
involved, Trooper DiCrescenzo alone had reasonable suspicion of a
drug offense from the outset of the traffic stop because Trooper
Vitale specifically told him that the vehicle came from Leominster
and likely had been involved in a drug transaction. Trooper
DiCrescenzo's knowledge of this information was relevant to his
assessment of the traffic stop and his investigation therefrom.
His training and experience in narcotics investigations and in
detecting indicators of criminal activity informed his judgments,
and, as noted, we give weight to them accordingly. See Ruidíaz,
529 F.3d at 29. While every case turns on its own facts, we are
informed by our decisions which have identified factual elements
similar to those present here in affirming reasonable suspicion
determinations. As has been noted, Trooper DiCrescenzo knew that
defendants were travelling on a known drug-trafficking
thoroughfare and were coming from a drug distribution area. Upon
approaching the vehicle, Trooper DiCrescenzo witnessed both
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defendants acting visibly nervous, and Jimenez's hands "physically
shaking." Defendants were more nervous than ordinary motorists,
and that nervousness persisted throughout the stop. See United
States v. Dion, 859 F.3d 114, 126-27 (1st Cir. 2017) (pointing to
a defendant's persistent nervousness, odd travel route and stated
purpose of travel along a drug-trafficking corridor to support
reasonable suspicion determination, and collecting cases doing the
same); Arnott,
758 F.3d at 44-45 (affirming determination that
reasonable suspicion arose when a suspected drug dealer was
monitored for a few weeks, an officer was told to undertake a
traffic stop after an apparent drug purchase, and the driver
appeared "unduly nervous" and his "hands were shaking").
Furthermore, Trooper DiCrescenzo's run of Jimenez's driver's
license and license plate showed that the license had also been
run by the Worcester Police Department, consistent with Trooper
Vitale's information about the vehicle's earlier whereabouts and
contrary to Jimenez's statement at the beginning of the traffic
stop that defendants had been visiting family in Lawrence. Upon
questioning Jimenez outside the Lexus, Trooper DiCrescenzo learned
that Jimenez, providing inconsistent answers, first could not name
the members of his family that he claimed to have visited and then
claimed that he and Cruz-Rivera were in Massachusetts to buy a
truck for which there was cash in the car. See United States v.
Clark,
879 F.3d 1, 5 (1st Cir. 2018) (affirming reasonable
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suspicion where defendant provided dates of birth that were
"inconsistent with" initial date provided to officer); United
States v. Molina-Gómez, 781 F.3d 13, 20 (1st Cir. 2015) (affirming
reasonable suspicion where defendant "could not remember the last
name" of a "friend he was visiting"); United States v. Lamela,
942
F.2d 100, 102 (1st Cir. 1991) (affirming reasonable suspicion where
defendant provided "inconsistent responses to routine questions
relating to the purpose of his travel"). Trooper DiCrescenzo
observed that the purported travel plans "were inconsistent with
the normal family trip" –- "a very long trip, about 200 miles to
visit with a relative for two hours in Lawrence . . . [,] a known
drug distribution area," only "to turn around and drive 200 miles
back . . . seems strange." See United States v. Ramdihall,
859
F.3d 80, 92 (1st Cir. 2017) (relying in part on odd explanation of
travel plans to support reasonable suspicion); Dion,
859 F.3d at
126-27 (same). Taken in isolation, any one of these facts would
not necessarily support reasonable suspicion, see, e.g., Illinois
v. Wardlow,
528 U.S. 119, 124 (2000), but our task is not to
perform a "divide-and-conquer analysis," which would be counter to
our charge to look to the totality of the circumstances, United
States v. Arvizu,
534 U.S. 266, 274 (2002). See also Ruidíaz,
529
F.3d at 30 (observing that "a fact that is innocuous in itself may
in combination with other innocuous facts take on added
significance"). Thus, at this point in the stop, there was a
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sufficient basis for Trooper DiCrescenzo to have reasonable
suspicion of wrongdoing that supported his continued detention and
questioning of defendants.
Next, Trooper DiCrescenzo's further investigations
ripened his reasonable suspicion into probable cause. See
Martinez-Molina, 64 F.3d at 726 ("[P]robable cause is a fluid
concept -- turning on the assessment of probabilities in particular
factual contexts.") (quoting Illinois v. Gates, 462 U.S. 213, 232
(1983)). Trooper DiCrescenzo's reasonable suspicion prompted him
to pursue questioning that would allow him "to investigate
potential narcotics trafficking." In questioning Cruz-Rivera,
Trooper DiCrescenzo again heard that defendants had travelled only
to Lawrence and was shown the black bag in the car; however, that
bag revealed not the $1,000 that Cruz-Rivera stated was present in
the vehicle, but "obviously tens of thousands of dollars" in
bundles secured with elastic bands that based on his training and
experience Trooper DiCrescenzo associated with narcotics
trafficking. Taking a reasonable and lawful measure to protect
himself from possible harm, Trooper DiCrescenzo moved Cruz-Rivera
to the side when he obscured his view into the bag. See United
States v. Acosta-Colon,
157 F.3d 9, 18 (1st Cir. 1998) (officers
"must be permitted to take measures . . . they believe reasonably
necessary to protect themselves from harm, or to safeguard the
security of others"). Indeed, looking at the totality of the
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circumstances -- as we must -- a reasonable view of the record
evidence supports the conclusion that, at this point, Trooper
DiCrescenzo's reasonable suspicion that defendants were involved
in drug trafficking had ripened into probable cause, such that the
resulting search of the vehicle -- which Trooper DiCrescenzo
believed would yield evidence of criminal wrongdoing -- was
permissible. See Lee, 317 F.3d at 33;
id. at 32 ("Probable cause
often accretes gradually as an investigation progresses . . . .
[T]he circumstances giving rise to reasonable suspicion . . . and
the developments that unfolded during the Terry stop furnished
probable cause for the appellant's arrest."); Dion, 859 F.3d at
133 (collecting cases where probable cause provided by various
facts including conflicting or inconsistent stories about travel
plans, and nervousness); United States v. Maldonado,
356 F.3d 130,
137 (1st Cir. 2004) (implausible explanations and incredible
travel tale supported probable cause).
Defendants' attempts to explain away Trooper
DiCrescenzo's basis for his reasonable suspicion and later
probable cause are unsuccessful. First, as we have noted,
reasonable suspicion is considered based on the totality of the
circumstances presented to a law enforcement officer, Harris, 568
U.S. at 244, with measurable deference given to the officer's view
of the situation, Ruidíaz,
529 F.3d at 29. This includes his
knowledge of the vehicle based on statements made directly to him
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by another officer and his own observations of defendants'
behavior. Defendants' efforts to parse actions and statements in
isolation are unavailing. See Terry, 392 U.S. at 22 (explaining
that each act may be "perhaps innocent in itself," but taken
together, the acts "warranted further investigation"); see also
District of Columbia v. Wesby,
138 S. Ct. 577, 588 (2018)
("[P]robable cause does not require officers to rule out a
suspect's innocent explanation for suspicious facts."). We find
unpersuasive defendants' reliance on Rodriguez v. United States,
where the Court stated that if a seizure is "justified only by a
police-observed traffic violation," officers may not prolong a
stop "absent the reasonable suspicion ordinarily demanded to
justify detaining an individual." 575 U.S. at 350, 355 (emphasis
added). Contrary to defendants' claims, and taking the facts in
the light most favorable to the suppression ruling, the traffic
stop here was not unreasonable because, far more than suspicion of
just a traffic infraction, Trooper DiCrescenzo had sufficient
reasonable suspicion of criminal activity to prolong the stop based
on Trooper Vitale's statement that the vehicle had been involved
in a drug transaction and subsequent investigation.
In short, we affirm the district court's decision not to
suppress evidence that resulted from the search of the vehicle
because we conclude that the officer had the requisite reasonable
suspicion to initiate the stop and that reasonable suspicion
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ripened into probable cause based on additional investigation. We
find no reason to reach the applicability of the collective
knowledge doctrine.
2. Statements Made During the Traffic Stop
Defendants also argue that, because the stop exceeded a
routine traffic stop, the questioning by Trooper DiCrescenzo was
a custodial interrogation requiring Miranda warnings. They
contend that their statements (including Jimenez's consent to the
search of the vehicle and subsequently obtained evidence) made
during the traffic stop should have been suppressed because Trooper
DiCrescenzo did not administer Miranda warnings to either
defendant.
Noting that "defendants argue that Trooper DiCrescenzo's
roadside conduct was a de facto arrest thus requiring the trooper
to provide them with Miranda warnings[,]" the district court did
not make an explicit ruling on whether those warnings were
required. Observing that a Terry stop can "morph into 'custody'
for Miranda purposes," and setting forth the factors that a court
must consider to determine whether there was "restraint on freedom
of movement associated with the formal arrest," the court stated
that "regardless of what the defendants said or did during the
stop, Trooper DiCrescenzo was going to search the motor vehicle.
His plan has no bearing on the question of whether the defendants
were in custody." In the district court's view, there was
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sufficient probable cause to make an arrest and search of the car
and, "[b]ecause there was, at a minimum, articulable and reasonable
suspicion that the defendants were engaged in criminal activity,
the authorities were entitled to stop the vehicle, detain the
occupants, and pursue a means of investigation that was likely to
confirm or dispel their suspicion." Hence, the district court
ruled defendants' statements made during that stop should not be
suppressed but were admissible at trial.
We conclude that Miranda warnings were not required.
Incriminating statements obtained during a custodial
interrogation, where "a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way," must be excluded from criminal prosecutions unless a
defendant has waived the Fifth Amendment privilege after being
warned of the right to remain silent. Miranda v. Arizona, 384
U.S. 436, 444 (1966). The custodial inquiry is an "objective,
suspect-focused" examination that is "informed by our assessment
of the reasonableness of the detaining officer['s] . . . actions
in response to developing conditions." United States v. Chaney,
647 F.3d 401, 409 (1st Cir. 2011). A finding of custody "depends
on the objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or
the person being questioned." United States v. Melo,
954 F.3d
334, 340 (1st Cir. 2020) (quoting Stansbury v. California, 511
- 22 -
U.S. 318, 323 (1994) (per curiam)). And "[w]here an investigatory
stop is justified at its inception [(and we have just observed
this one was indeed justified)], it will generally not morph into
a de facto arrest as long as 'the actions undertaken by the
officer[s] following the stop were reasonably responsive to the
circumstances justifying the stop in the first place as augmented
by information gleaned by the officer[s] during the stop.'"
Chaney, 647 F.3d at 409 (quoting United States v. Trueber,
238
F.3d 79, 92 (1st Cir. 2001)).
In Berkemer v. McCarty, 468 U.S. 420, 440 (1984), the
Supreme Court ruled that Miranda warnings are not required in
"ordinary" traffic stops. However, as we have had occasion to
observe, "[n]otably, despite its holding that, generally, law
enforcement officers are not required to give Miranda warnings at
traffic stops, the [Berkemer] Court established no categorical
rule. Indeed, it held that Miranda warnings would be required 'as
soon as a suspect's freedom of action is curtailed to 'a degree
associated with formal arrest.'" Campbell,
741 F.3d at 266
(emphasis in original) (first quoting Berkemer,
468 U.S. at 440,
and then quoting California v. Beheler,
463 U.S. 1121, 1125 (1983)
(per curiam)). Our task here is, as was set forth in Campbell,
"to determine whether the facts of a specific case indicate a
situation more akin to a routine traffic stop, at which Miranda
warnings are not required," or indicate that detention has
- 23 -
escalated such that "a suspect has been 'subjected to restraints
comparable to those associated with a formal arrest,' at which
point Miranda warnings are required." Id. (quoting Berkemer,
468
U.S. at 441).
The need for a Miranda warning turns on whether
defendants here were in custody, but that determination is a two-
step process. See, e.g., Melo, 954 F.3d at 339 (observing that
the "inquiry into 'whether an individual's freedom of movement was
curtailed, however, is simply the first step in the analysis, not
the last,'" and "[o]nce we complete the freedom-of-movement step,
we must still ask 'the additional question whether the relevant
environment presents the same inherently coercive pressures as the
type of station house questioning at issue in Miranda.'" (quoting
Howes v. Fields,
565 U.S. 499, 509 (2012))).
For the first step, to "ascertain whether . . . a
'reasonable person [would] have felt he or she was not at liberty
to terminate the interrogation and leave[,]'" Howes, 565 U.S. at
509 (alteration in original) (quoting Thompson v. Keohane,
516
U.S. 99, 112 (1995)), we look to a number of factors "relevant
to this aspect of our custody analysis," Melo,
954 F.3d at 340.
These include "whether the suspect was questioned in familiar or
at least neutral surroundings, the number of law enforcement
officers present at the scene, the degree of physical restraint
placed upon the suspect, and the duration and character of the
- 24 -
interrogation." Id. (quoting United States v. Masse,
816 F.2d
805, 809 (1st Cir. 1987)). In "evaluating all of the circumstances
surrounding the incident . . . . [,] no single element dictates
the outcome of this analysis." United States v. Jones,
187 F.3d
210, 218 (1st Cir. 1999) (quoting the Masse factors in an analysis
of traffic stop and custody).
We turn to the application of the custodial factors. As
to the first factor in our freedom of movement analysis -- whether
the questioning took place in familiar or at least neutral
surroundings –- we note that here it was Route 84. On this record,
it seems clear that these surroundings were not familiar to the
out-of-state defendants. Our case law often describes highways
and roadsides as neutral. See, e.g., Jones, 187 F.3d at 218
("Although the location apparently was not familiar to [the
defendant] and the area was not well-lit, a public highway is a
neutral setting that police officers are not in a position to
dominate as they are, for example, an interrogation room at a
jailhouse."); Berkemer, 468 U.S. at 421 ("[T]he typical traffic
stop is conducted in public, and the atmosphere surrounding it is
substantially less 'police dominated' than that surrounding the
kinds of interrogation at issue in Miranda and subsequent cases in
which Miranda has been applied."). However, that a highway is not
per se police-dominated in the same way that the interrogation
room in a station house is does not mean that it is per se neutral.
- 25 -
Where, as here, the police are controlling the situation the
neutrality of the site is arguably brought into question.
With respect to the second factor -- the number of
officers –- under our case law, the presence here was not
excessive. For the relevant time frame, defendants were
questioned by one officer, Trooper DiCrescenzo, although briefly
aided by another translating officer via telephone. See, e.g.,
Campbell, 741 F.3d at 267 (finding four or five police officers
questioning three defendants not to be a custodial interrogation);
United States v. Crooker,
688 F.3d 1, 12 (1st Cir. 2012)
(determining a suspect was not in custody when "no more than two
agents were in direct conversation" with the suspect at one time).
Regarding the third factor, the degree of physical
restraint placed on the suspects, we note that after Trooper
DiCrescenzo had finished questioning Jimenez, he placed Jimenez in
the back seat of his cruiser, informing him that he was not under
arrest but was being placed in the vehicle for his safety (and
also for the trooper's). The result was that Jimenez was
physically locked in the back of the trooper's cruiser and unable
to let himself out, and Cruz-Rivera, deprived of his driver, was
thereby impacted. While Jimenez was in the back of the cruiser,
Trooper DiCrescenzo questioned Cruz-Rivera and continued his
investigation. Notably, because Jimenez's statements were made
prior to being placed in the patrol car, his physical restraint is
- 26 -
arguably inconsequential. In any event, the cases analyzing
physical restraint in motor vehicle stop cases are, of course,
fact dependent. See, e.g., United States v. McCarthy, 77 F.3d
522, 532 (1st Cir. 1996) (although detention issue was
"exceptionally close," stop was not "needlessly intrusive" where
defendant, who was placed in back of the officer's vehicle, was
never handcuffed, there was no evidence that the officer ever drew
a gun, and where officers informed defendant that "although he was
not free to leave, he was not under arrest, and they were detaining
him for investigative purposes because a car identical to his . .
. had been involved in a bank robbery earlier that day"); United
States v. Dunbar,
553 F.3d 48, 56 (1st Cir. 2009) ("the fact that
[defendant] 'was placed in the back of a police cruiser does not
elevate the detention beyond a Terry stop'") (quoting Flowers v.
Fiore, 359 F.3d 24, 30 (1st Cir. 2004)); Ruidíaz,
529 F.3d at 32
("When a Terry stop is effected in connection with a traffic
violation and an officer's concern for his own safety is
implicated, it is within the officer's authority to order a
passenger out of the car as a security measure"; "an officer may
issue such an order as a matter of course; he does not need to
have an independent fear for his safety.") (citations omitted).
As for the final factor -- the duration and character of
interrogation -- the duration was not excessive under our case
law. See, e.g., United States v. Hughes, 640 F.3d 428, 437 (1st
- 27 -
Cir. 2011) (characterizing a ninety-minute interview as
"relatively short")). The questioning was complete just over a
half-hour after the initiation of the stop (regardless of the
longer duration of the stop in its entirety). Further, Trooper
DiCrescenzo's questioning lasted only a few minutes for each
defendant. There is no testimony suggesting the trooper was
hostile or made shows of force during the stop). In sum, "[t]here
is no indication that the stop lasted for an inappropriately long
period of time or that the officers acted with hostility toward
the defendants." Campbell, 741 F.3d at 267.
Although we have just surveyed the various custodial
factors, we need not tote up how defendants fare as to them. In
this case, we need not resolve the first step question of whether
defendants' freedom-of-movement was curtailed, because even
assuming arguendo that it was, we conclude that defendants do not
prevail with respect to the requisite second step of the custody
analysis. "[A] suspect's lack of freedom to go away does not
necessarily mean that questioning is custodial interrogation for
purposes of Miranda." United States v. Ellison, 632 F.3d 727, 729
(1st Cir. 2010). As we have noted, "whether an individual's
freedom of movement was curtailed" is just "the first step in the
analysis, not the last." Melo,
954 F.3d at 339 (quoting Howes,
565 U.S. at 509)). We still need to turn to "the additional
question whether the relevant environment presents the same
- 28 -
inherently coercive pressures as the type of station house
questioning at issue in Miranda." Id. (quoting Howes,
565 U.S.
at 509); see also Maryland v. Shatzer,
559 U.S. 98, 113 (2010)
("[T]he freedom-of-movement test identifies only a necessary and
not a sufficient condition for Miranda custody."). The focus here
is whether a person would reasonably find the circumstances
coercive enough that the concern that drove Miranda comes into
play, Ellison, 632 F.3d at 729, i.e., whether there is enough
pressure on a person to sufficiently impair his free exercise of
his privilege against self-incrimination. This inquiry is the
crux of our analysis because Miranda "does not apply outside the
context of the inherently coercive custodial interrogations for
which it was designed." Minnesota v. Murphy,
465 U.S. 420, 430
(1984) (quoting Roberts v. United States,
445 U.S. 552, 560
(1980)); see also Campbell,
741 F.3d at 265. After all,
"'[c]ustody' for purposes of Miranda must be 'narrowly
circumscribed' to effectuate the precise purpose of the warnings."
Campbell,
741 F.3d at 265 (quoting Murphy,
465 U.S. at 430).
Bearing all of this in mind, the stop here, "given the
facts as found by the district court, 'lacked the coercive element
necessary to convert it into something more draconian,' based on
the totality of the circumstances." United States v. Fornia-
Castillo, 408 F.3d 52, 65 (1st Cir. 2005) (quoting Lee,
317 F.3d
at 32). In this regard, we are informed by comparing the
- 29 -
circumstances before us with the many other cases where we have
deemed more restrictive settings noncustodial. See, e.g., Jones,
700 F.3d at 625 (1st Cir. 2012) ("[P]olice officers may use
multiple vehicles, multiple officers, handcuffs and drawn weapons
without turning a Terry stop into a de facto arrest."); Fornia-
Castillo, 408 F.3d at 64-65 (concluding that a suspect was not in
custody when a single officer stopped the suspect on a busy public
road, drew his gun in a defensive position, handcuffed the suspect
for ten to fifteen minutes, frisked the suspect, and questioned
the suspect while he was handcuffed); United States v. Maguire,
359 F.3d 71, 79 (1st Cir. 2004) (finding, on balance, no de facto
arrest because even though police had wrestled suspect to the
ground and an officer drew his weapon, the suspect hadn't been
"detained in a manner consistent with a formal arrest," the events
took place on a public street during "the light of day," (quoting
Trueber,
238 F.3d at 94) and no handcuffs were used); Lee,
317
F.3d at 31-32 (reasoning that even when officers drew their guns
and blocked the suspect's vehicle from leaving the scene, the
investigative stop did not amount to a de facto arrest). True, a
reasonable person in either Cruz-Rivera or Jimenez's position
would not have thought himself free to walk away -- it is
reasonable that they would have understood "something more than a
routine traffic stop was in progress" -- "[b]ut on the broad
spectrum from a speeding ticket to a grilling in the squad room,
- 30 -
the events here were . . . short of any de facto arrest or custodial
interrogation," and, "given this, and that the circumstances were
not inherently coercive, no Miranda warning was required." United
States v. Teemer, 394 F.3d 59, 66 (1st Cir. 2005). In sum, while
the situation certainly had some arrest-like aspects to it, a
reasonable person in either defendant's position would not have
believed he was under arrest. Therefore, the district court
properly denied defendants' motion to suppress their statements
made during the stop.2
B. Cross-Examination
Next, Cruz-Rivera argues that the district court
impermissibly limited questioning of Gutierrez in violation of the
Confrontation Clause by not allowing full cross-examination on
Gutierrez's discussions with the government regarding his plea
deal and sentencing for two other federal drug offenses. During
Gutierrez's cross-examination by Cruz-Rivera, the district court
sustained objections by the government to limit questioning about
Gutierrez's plea deal and cooperation agreements for two other
drug offenses, so as to avoid him possibly recounting what his
2 Cruz-Rivera's reliance on United States v. Chhien, supra,
is unpersuasive. While Chhien warned against the danger of a
routine traffic stop being used as an excuse to interrogate an
individual about unrelated suspected criminal offenses, this case
falls squarely within Chhien's conclusion that an officer may
conduct "[r]outine questioning . . . even when not directly related
to the violations that induced the stop in the first place," such
as about the driver's itinerary.
266 F.3d at 9.
- 31 -
lawyers told him and thereby misleading the jury. Later, when
Cruz-Rivera returned to questioning on Gutierrez's understanding
of the sentencing guidelines, including attempting to question his
understanding of the detailed mechanics of guideline calculations,
the government again objected and, at sidebar, the district court
probed whether the testimony would confuse the jury. Gutierrez
then testified that he understood that his sentence was lower than
the high-end of the sentencing guidelines range.
"[W]e consider de novo whether the strictures of the
Confrontation Clause have been met." United States v. Díaz, 670
F.3d 332, 344 (1st Cir. 2012) (quoting United States v. Vega
Molina,
407 F.3d 511, 522 (1st Cir. 2005)). Where there has been
no violation of the Confrontation Clause, we review limitations
placed on cross-examination for an abuse of discretion. United
States v. Jiménez-Bencevi,
788 F.3d 7, 21 (1st Cir. 2015) (citing
United States v. Martínez-Vives,
475 F.3d 48, 53 (1st Cir. 2007)).
The Sixth Amendment's Confrontation Clause protects the right of
defendants "to cross-examine witnesses who testify against them,"
United States v. Casey,
825 F.3d 1, 23–24 (1st Cir. 2016), within
reasonable limits to avoid "harassment, prejudice, confusion of
the issues, the witness' safety, or interrogation that is
repetitive or only marginally relevant," Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986). A violation of the Confrontation Clause
exists where a jury "might have received a significantly different
- 32 -
impression" of the witness's testimony or credibility if the
defendant had been permitted full cross-examination. Id. at 680.
See also United States v. Acevedo-Hernández,
898 F.3d 150, 168
(1st Cir. 2018) (applying the harmless error rule to admission of
testimony).
We conclude that the district court did not err in
limiting cross-examination to avoid Gutierrez testifying about the
contents of the sentencing guidelines or his out-of-court
conversations and to prevent potential juror confusion. See
Shannon v. United States, 512 U.S. 573, 579 (1994) ("providing
jurors sentencing information . . . creates a strong possibility
of confusion" because the jury has "no sentencing function"). The
district court's concern regarding the potential for juror
confusion did not constitute an abuse of discretion. In fact, the
court allowed Cruz-Rivera's questions on Gutierrez's possible bias
because of his lower sentence through cooperation with the
government. Defense counsel was still able to elicit Gutierrez's
testimony about his understanding that his cooperation with
investigators could result in a reduced sentence for his drug-
trafficking offenses. Furthermore, in closing argument, Cruz-
Rivera argued that the jury should not find Gutierrez's testimony
credible, in part, because he knew that his cooperation with the
government would result in him getting a lesser sentence. Thus,
there was no harm to Cruz-Rivera because Gutierrez's potential
- 33 -
bias was exposed through this testimony even though Cruz-Rivera
did not get to ask every question desired, therefore, Cruz-Rivera's
Confrontation Clause argument fails. See Delaware v. Fensterer,
474 U.S. 15, 20 (1985) (per curiam) ("[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish."). This result is not
surprising in light of our decisions in similar cases. See United
States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995)
(finding no Confrontation Clause violation where a district court
limited testimony regarding sentencing); Jiménez-Bencevi, 788 F.3d
at 21–22 (same).
We discern no abuse of discretion in the district court's
limitation on Gutierrez's cross-examination by defendants.
C. Closing Argument
Third, Cruz-Rivera argues that the prosecutor in closing
argument improperly made statements that referred to facts not in
evidence. According to Cruz-Rivera, the prosecutor made four
erroneous statements to which he objected: (1) in describing
Gutierrez's testimony, the prosecutor referred to a location
associated with drug-dealing when Gutierrez's testimony indicated
that the location named referred to an individual, (2) in using an
audiovisual aide, the prosecution added a written caption to video
evidence, (3) the prosecutor suggested the jury should interpret
- 34 -
translated recorded statements from Gutierrez regarding "the truck
from there" as a reference to drugs coming from Puerto Rico, and
(4) the prosecutor argued that, had defendants gone with Gutierrez
to find a truck as Cruz-Rivera claimed, the surveillance team would
have seen and testified to that fact when in fact one of the
investigators testified that he did see Gutierrez leave the garage
with two men during the surveillance. He contends that those
statements were not harmless despite the district court's
instruction that closing arguments are not evidence because of the
credibility determinations the jury was required to make.
In making closing arguments, a prosecutor "cannot refer
to facts not in evidence," but may "ask jurors to draw reasonable
inferences from the evidence." United States v. Ponzo, 853 F.3d
558, 583 (1st Cir. 2017) (first citing United States v. Auch,
187
F.3d 125, 129 (1st Cir. 1999); then quoting United States v.
Meadows,
571 F.3d 131, 145 (1st Cir. 2009)). Where a timely
objection is lodged to a statement made by the government in
closing argument, "[w]e review de novo whether the challenged
portion of the government's closing argument was improper and, if
so, whether it was harmful." United States v. González-Pérez,
778
F.3d 3, 19 (1st Cir. 2015) (alteration in original) (quoting United
States v. Appolon,
695 F.3d 44, 66 (1st Cir. 2012)). That is to
say, "we may reverse [the] convictions on the basis of the
prosecutor's remarks only if they were 'both inappropriate and
- 35 -
prejudicial.'" United States v. Amaro-Santiago, 824 F.3d 154, 158
(1st Cir. 2016) (quoting United States v. Matías,
707 F.3d 1, 5
(1st Cir. 2013)). We have "fashioned a three prong test for
examining whether the [remarks] 'so poisoned the well' that the
trial's outcome was likely affected, thus warranting a new trial."
United States v. Joyner,
191 F.3d 47, 54 (1st Cir. 1999) (citing
United States v. Capone,
683 F.2d 582, 586-87 (1st Cir. 1982)).
"We examine: (1) whether the prosecutor's conduct was isolated
and/or deliberate; (2) whether the trial court gave a strong and
explicit cautionary instruction; and (3) whether it is likely that
any prejudice surviving the judge's instruction could have
affected the outcome of the case."
Id. (citing United States v.
Hodge-Balwing,
952 F.2d 607, 610 (1st Cir. 1991)). We thus review
the challenged remarks under the three-pronged test.
First, while Cruz-Rivera identifies four statements by
the prosecutor that he claims introduced facts not in evidence, we
disagree with those characterizations. As to the first statement,
regarding Gutierrez's reference to "Centro," which he claimed was
a nickname for a person based on where that individual lived, the
prosecutor's statement that Gutierrez "was talking about centro,
not the center translation, but centro, a location, a place for
drug dealing, a person," was a summary of Gutierrez's testimony
that was not clearly incorrect in a way that rises to the level of
introducing facts not in evidence. Similarly, the caption on the
- 36 -
video evidence was a summary of Gutierrez's testimony and did not
constitute facts not in evidence.
As to the prosecutor's suggestion to the jury that it
interpret Gutierrez's testimony regarding "the truck from there"
as a reference to drugs coming from Puerto Rico, this was not a
statement of facts not in evidence, or a statement of fact at all.
Rather, the prosecutor was asking the jury to make an inference
based on the evidence that was presented. This was not an error.
See Ponzo, 853 F.3d at 583.
Finally, the prosecutor's contention that the jury
should conclude that Gutierrez and defendants had not left the
garage as Cruz-Rivera claimed based on the surveillance team's
observations comes closest to introducing facts not in evidence.
While the government's evidence ambiguously identified the
presence of two trucks at the Union Street garages during the
surveillance, the government addressed this confusion through
additional questioning of the testifying officers to clarify that
the surveillance team confirmed that the second truck spotted was
not Gutierrez's as Cruz-Rivera claimed. Thus, even this statement
is not clearly a misstatement of the facts in evidence. In any
event, this one arguable misstatement was isolated, the district
court instructed the jury that closing arguments were not evidence,
and the statement was far from so poisoning the well as to warrant
a new trial. See Joyner, 191 F.3d at 54. Because the statement
- 37 -
was harmless, we will not disturb the convictions on this basis.
D. District Court's Response to the Jury
Next, Jimenez argues that the district court incorrectly
instructed the jury in response to a question asked during
deliberations. After initially being instructed on the elements
of conspiracy of and possession with intent to distribute at least
one hundred grams of heroin, the jury asked two questions regarding
conspiracy. Relevant here is the second question:
If you are aware that money confiscated during a
traffic stop is illegal drug money, and you
participate in the attempted retrieval of the
confiscated money, are you a willful participant in
the conspiracy agreement?
In response, the district court instructed the jurors:
[I]t's going to be very frustrating, and I
apologize, but what I'm going to ask you to do --
well, first of all, the answer is it depends, okay.
And that is not the answer that I think you wanted
to hear, but it depends upon a bunch of things. It
depends upon the facts as you have found them and
taking these facts and applying them to the
instructions on -- that I gave you on the crime of
conspiracy.
Okay. Now, I wish I could be more specific
than that, but I can't because the instructions are
an accurate recitation of the law, and you have to
take those instructions and apply them to the facts
as you find them to be.
Both before and after the district court answered the jurors'
question, Jimenez objected and noted that his position was that
"No" was the appropriate answer. On appeal, Jimenez argues that
the answer of "it depends" was legally incorrect because it either
- 38 -
was an improper opinion on a hypothetical fact pattern or the
district court erroneously instructed the jury that retrieval of
the receipt for the cash confiscated during the traffic stop means
that Jimenez was a co-conspirator to the narcotics crime.
When evaluating preserved challenges, we consider de
novo whether the district court misstated the law and review for
abuse of discretion whether the district court adequately
explained the law. United States v. Monteiro, 871 F.3d 99, 114
(1st Cir. 2017); United States v. Symonevich,
688 F.3d 12, 24 (1st
Cir. 2012).
We conclude that the district court did not misstate the
law because the jury's question was inherently fact-bound. See
United States v. Upton, 559 F.3d 3, 11 (1st Cir. 2009)
("Determining the contours of the conspiracy ordinarily is a
factual matter entrusted largely to the jury."). An answer that
waded into the facts would have impermissibly intruded on the
jury's "constitutional responsibility" "to determine the facts"
and "to apply the law to those facts." United States v. Gaudin,
515 U.S. 506, 514 (1995). The district court sufficiently
explained to the jury that a finding of conspiracy depends on its
factual findings and did not abuse its discretion in answering the
jury's question. Rather, the district court correctly
"exercise[d] caution" when answering a question that may have been
dispositive to the jury's decision. United States v. Roberson,
- 39 -
459 F.3d 39, 46 (1st Cir. 2006). Accordingly, we find no merit
in the claim that the district court's response to the jury
warrants disturbing the convictions.
E. Jimenez's Sentence
Finally, Jimenez argues that the district court erred in
applying the mandatory minimum sentence under 21 U.S.C.
§ 841(b)(1)(B)(i). Section 841(b)(1)(B) mandates a five-year
minimum sentence for any violation of section 841(a) involving one
hundred grams or more of heroin. At sentencing, the district
court adopted the recommendation of the presentence report that
Jimenez receive the mandatory minimum based on the jury's finding
that Jimenez possessed or distributed one hundred grams or more of
heroin. On appeal, Jimenez argues that the district court erred
in applying the mandatory minimum sentence because the verdict
indicates that Jimenez was convicted on an aiding and abetting
theory and, thus, lacked knowledge of the drug quantity. In other
words, Jimenez argues that he lacked the requisite mental state
for application of the mandatory minimum sentence under
21 U.S.C.
§ 841(b)(1)(B)(i).
Jimenez's argument cannot overcome binding precedent.
In United States v. Collazo-Aponte, we held that drug quantity is
not "an element of the offense to which the mens rea requirements
should apply." 281 F.3d 320, 326 (1st Cir. 2002). Instead,
Section 841(b)'s "plain language" requires "the government to
- 40 -
prove only that the offense 'involved' a particular type and
quantity of drug, not that the defendant knew that he was
distributing that particular drug type and quantity." Id. (citing
United States v. Sheppard,
219 F.3d 766, 768 n.2, 770 (8th Cir.
2000)). As we have noted, the law of precedent is a bedrock to
our system of adjudication. See United States v. Barbosa,
896
F.3d 60, 74 (1st Cir. 2018). While that doctrine admits of
exceptions in very limited circumstances, defendants' arguments
based on subsequent Supreme Court cases, citing principally Rehaif
v. United States,
139 S. Ct. 2191, 2195 (2019), Elonis v. United
States,
135 S. Ct. 2001, 2009 (2015), and Alleyne v. United
States,
570 U.S. 99, 114–15 (2013), do not "offer[] a sound reason
for believing that the former panel, in light of fresh
developments, would change its collective mind." Barbosa,
896
F.3d at 74. 3 Indeed, every other circuit to have considered
whether section 841(b) required that a defendant have knowledge of
the specific quantity has rejected that claim. See United States
v. King,
345 F.3d 149, 152–53 (2d Cir. 2003) (per curiam); United
States v. Barbosa,
271 F.3d 438, 457–58 (3d Cir. 2001); United
States v. Brower,
336 F.3d 274, 276–77 (4th Cir. 2003); United
States v. Gamez-Gonzalez,
319 F.3d 695, 699–700 (5th Cir. 2003)
3As Jimenez notes, in a recent unpublished decision, a panel
of this court rejected an argument that Collazo-Aponte should be
revisited and overturned. See United States v. Mejía-Romero, 822
Fed. App'x 1, 3 (1st Cir. 2020) (unpublished).
- 41 -
(dictum); United States v. Villarce, 323 F.3d 435, 438-39 (6th
Cir. 2003); United States v. Carrera,
259 F.3d 818, 830 (7th Cir.
2001); Sheppard,
219 F.3d at 768 n.2; United States v. Collazo,
984 F.3d 1308, 1326-29 (9th Cir. 2021) (en banc); United States v.
Briseno,
163 F. App'x 658, 665–66 (10th Cir. 2006) (unpublished);
United States v. Sanders,
668 F.3d 1298, 1310 (11th Cir. 2012)
(per curiam); United States v. Branham,
515 F.3d 1268, 1275–76
(D.C. Cir. 2008). We conclude that the holding of Collazo-Aponte,
that "the government [must] prove only that the offense 'involved'
a particular type and quantity of [a proscribed] drug, not that
the defendant knew that he was distributing that particular drug
type and quantity," controls our review of convictions on three
drug-trafficking counts.
281 F.3d at 326.4 We affirm the district
court's application of the mandatory sentencing guidelines on that
basis.
III. CONCLUSION
For the reasons stated above, the judgments of
conviction are affirmed.
4Jimenez suggests that the jury's determination on the
conspiracy count that one hundred grams of heroin was not
foreseeable to him necessarily meant that he lacked requisite
knowledge of the circumstances of the offense, and thus could not
be liable as an aider and abettor on the substantive count.
Therefore, he contends, the jury must have found him liable under
a constructive possession theory. We are not persuaded by this
argument because under any theory of liability, the jury was not
required to find that Jimenez had knowledge of the drug quantity.
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