
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1043          No. 96-1669                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 DONALD E. CLEVELAND,                                Defendant, Appellant.                                 ____________________          No. 96-1128                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  RAMON E. VASQUEZ,                                Defendant, Appellant.                                 ____________________          No. 96-1659                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                ENRIQUE GRAY-SANTANA,                                Defendant, Appellant.                                 ____________________                                        ERRATA          The  published opinion of this Court issued on February 18, 1997,          is amended as follows:          Page 4:  insert as line 1, the following:  "to eight kilograms of          cocaine from co-defendant Juan Rodriguez"          Page 5, 4th line from bottom:  delete comma after "Acosta"                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1043        No. 96-1669                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 DONALD E. CLEVELAND,                                Defendant, Appellant.                                 ____________________        No. 96-1128                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  RAMON E. VASQUEZ,                                Defendant, Appellant.                                 ____________________        No. 96-1659                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                ENRIQUE GRAY-SANTANA,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                          and Bownes, Senior Circuit Judge.                                      ____________________                                 ____________________            Inga S. Bernstein and John H. Cunha, by Appointment of the  Court,            _________________     _____________        with whom Norman  S. Zalkind,  Zalkind, Rodriguez, Lunt  & Duncan  and                  __________________   __________________________________        Salsberg,  Cunha  & Holcomb,  P.C.  were  on consolidated  briefs  for        __________________________________        appellants Enrique Gray-Santana and Donald E. Cleveland.            Oliver  C. Mitchell,  Jr. with  whom  Donnalyn  B. Lynch  Kahn and            _________________________             ________________________        Goldstein  &  Manello,  P.C. were  on  brief  for  appellant Ramon  E.        ____________________________        Vasquez.            Andrea Nervi  Ward, Assistant  United States  Attorney, with  whom            __________________        Donald K.  Stern, United States Attorney, was on briefs for the United        ________________        States.                                 ____________________                                  February 18, 1997                                 ____________________                      CAMPBELL, Senior Circuit  Judge.  Ramon E.  Vasquez                                _____________________            appeals from  his  conviction by  a  jury for  conspiracy  to            possess cocaine with intent to  distribute in violation of 21            U.S.C.   846  and for  possession of cocaine  with intent  to            distribute in violation of 21 U.S.C.   841.  He contends that            the district  court erred in  denying his motion  to suppress            certain physical  evidence and in omitting  "hesitate to act"            language from its reasonable doubt instruction.                        Enrique Gray-Santana and Donald Cleveland, who were            Vasquez's  co-defendants, pleaded  guilty  to  attempting  to            possess  cocaine with intent to distribute in violation of 21            U.S.C.     846 and 841(a) and  to carrying or using a firearm            during  and  in  relation  to  a  drug  trafficking  crime in            violation  of 18 U.S.C.    924(c)(1).  As  their guilty pleas            permit, they now appeal from the district court's  denials of            their motions to suppress  and motions in limine.   They also            appeal from the district court's denial of  relief from their              924(c)(1)  convictions for carrying  or using a  firearm in            relation to a drug crime.  They argue that their guilty pleas            and convictions should be  invalidated under Bailey v. United                                                         ______    ______            States,  ___  U.S. ___,  116 S.  Ct.  501 (1995),  a decision            ______            handed down by the Supreme Court shortly after acceptance  of            their guilty pleas.                                    I.  Background                                         -4-                      Most of the facts are not in dispute.  Gray-Santana            ("Gray"), a  resident of  New York City,  arranged to  secure            five  to eight  kilograms of  cocaine from  co-defendant Juan            Rodriguez (not  a present appellant).  Gray  intended to sell            the  cocaine through other contacts  he had in  Boston, so he            arranged to take delivery in Boston.                      On the morning of  October 18, 1994, Gray travelled            by bus  to  Boston, planning  to meet  Cleveland.   Cleveland            picked  Gray up in  a rented white Mazda  929 he had borrowed            from  a friend and took  him to his  house.  There, Cleveland            and  Gray placed three loaded handguns inside a Louis Vuitton            duffel bag and put the bag inside the Mazda's trunk.  The two            planned  to  use the  guns to  rob  their suppliers  of their            cocaine.  At around 4 p.m.,  Cleveland and Gray were paged by            Rodriguez.  They then left in the Mazda to meet  Rodriguez in            the Symphony Hall area of Boston.                      At  this time, the  Drug Enforcement Administration            was investigating  one Juan Pagan.   The DEA  had information            that Pagan was shipping large amounts  of cocaine from Puerto            Rico to New England.   On October 17, 1994,  heightened phone            activity  led  DEA  Agents to  begin  physical  surveillance,            including videotaping, of  the Connecticut apartment  complex            where Juan Pagan resided.   Around noon on October  18, 1994,            two cars  arrived at  the complex.   The first  was a  Lexus,                                         -5-            driven by William Acosta with Vasquez in the back  seat.  The            second was a Lincoln, driven by Rodriguez.                      After the  cars parked, Rodriguez  handed Acosta  a            black  bag and  then  Acosta  took  the  bag  up  to  Pagan's            apartment.   Vasquez, carrying a  cellular phone, got  out of            the Lexus and sat  with Rodriguez in the Lincoln.   After ten            or fifteen minutes,  Acosta came back  and spoke to  Vasquez,            prompting  Vasquez and Rodriguez  to leave  the complex  in a            brown Oldsmobile driven by one Jorge Quinones.  An hour or so            later,  Vasquez  returned  in  the  Oldsmobile,  followed  by            Rodriguez in a white Isuzu Trooper.                      The   DEA  had   received   information  from   two            confidential sources that Pagan used a white Isuzu Trooper in            his  drug operations.  These informants had also told the DEA            that some of Pagan's vehicles had hidden compartments used to            hold  drugs.  One of  the informants had  stated that Pagan's            white Isuzu Trooper had such  a hidden compartment under  the            rear seat.                      After the  Isuzu arrived, Acosta and Rodriguez were            observed examining  its back  seat area.   Acosta then  left,            driving the Lexus with  Vasquez in the back seat.   Rodriguez            followed them in the Isuzu.  The two cars drove  to Boston on            major  highways, staying  close to  55 miles  per hour.   DEA            agents followed them the entire way.                                         -6-                      After the caravan arrived in the Symphony Hall area            of Boston, Acosta and Rodriguez parked the cars.  Acosta then            used the Lexus to  guide Cleveland and Gray, who  had arrived            in the Mazda,  to where the  Isuzu was parked.   Acosta drove            away,  and Vasquez was next observed sitting in the back seat            of the Mazda.  Gray exited  the Mazda and got into the Isuzu.            Vasquez got into the front seat of the Mazda.                      The  two cars began to  drive off.   At this point,            the  DEA  agents  blocked  them.    The  agents  ordered  the            occupants of both cars to exit  their vehicles and handcuffed            them. The agents then  moved the suspects and their  cars out            of traffic to a nearby parking lot.                      The  agents  searched  the   Isuzu  and  found  six            kilograms of  cocaine in  a concealed  compartment underneath            the back seat.   They then  searched the Mazda and  found the            bag in the  trunk containing  the three guns,  rope and  duct            tape.   At that point, the four men were told they were under            arrest.                      A  few  hours after  his  arrest, while  he  was in            custody, Gray  gave a  statement to DEA  agent Bruce  Travers            confessing to participation in the events described above.                        Vasquez  filed  a motion  to suppress  the physical            evidence found  on his person at the time of his arrest.  The            district court denied  his motion.   Vasquez was  tried by  a            jury  and convicted  of  conspiracy to  possess cocaine  with                                         -7-            intent to distribute and of possession of cocaine with intent            to  distribute.   The court  sentenced him  to 121  months in            prison.                      Cleveland   and  Gray  eventually  pled  guilty  to            attempting to  possess cocaine with intent  to distribute and            to carrying or  using a firearm during  and in relation to  a            drug trafficking crime,  subject to their right to appeal any            adverse ruling  by  the district  court on  their motions  to            suppress physical evidence and to suppress Gray's post-arrest            statement.    The district  court  denied  their motions  and            sentenced each of them to 180  months in prison and 60 months            of supervised  release.1  After  the Supreme Court  came down            with  its Bailey decision, 116 S. Ct. 501, Cleveland and Gray                      ______            moved in  the district court  for relief from  the conviction            for  carrying  or  using a  firearm  in  relation  to a  drug            trafficking crime.  The court denied that motion.                                     II.  Vasquez            A.  The Search of Vasquez's Person:            __________________________________                      In his  first point  of error, Vasquez  argues that            the  district court erred  in denying his  motion to suppress            the physical evidence the  agents found on his person.   This            included  a pager,  address book,  business cards,  and notes            tying  Vasquez to the other  defendants.  He  contends that a                                            ____________________            1.  Rodriguez  pleaded guilty  to  conspiracy and  possession            charges and was also sentenced to 120 months in prison and 60            months of supervised release.                                         -8-            wrongful  de  facto arrest  occurred  when  he was  initially            ordered out of  the Mazda  and handcuffed.   (Only later  was            Vasquez told he was under  arrest and thereafter searched, by            which  time the  cocaine had been  discovered in  the Isuzu.)            Because  the initial  de facto  arrest was  allegedly without            probable  cause, Vasquez argues that it  was illegal and that            it tainted all subsequent events, causing the later search of            his person to violate the Fourth Amendment.                      The district  court  held, however,  and we  agree,            that the agents had  probable cause to arrest Vasquez  at the            time  they ordered him out  of the Mazda  and handcuffed him.            Accordingly, regardless of whether  the arrest occurred  then            or later, the arrest  was legal and the subsequent  search of            his  person was proper.  "[I]t is well established that '[i]f            an  arrest is lawful, the arresting  officers are entitled to            search the individual apprehended pursuant to  that arrest.'"            United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir.)            _____________    ________________            (quoting  United States v. Uricoechea-Casallas, 946 F.2d 162,                      _____________    ___________________            165 (1st Cir. 1991)), cert. denied, 115 S. Ct. 193 (1994).                                    ____________                      "Law  enforcement  officers may  effect warrantless            arrests  provided that  they have  probable cause  to believe            that  the suspect  has committed or  is committing  a crime."            United States v. Martinez-Molina, 64  F.3d 719, 726 (1st Cir.            _____________    _______________            1995)  (citing United States v. Watson,  423 U.S. 411, 416-18                           _____________    ______            (1976);  Gerstein  v. Pugh,  420  U.S.  103, 113-14  (1975)).                     ________     ____                                         -9-            "[The government] need  only show  that, at the  time of  the            arrest, the  facts and  circumstances known to  the arresting            officers  were  sufficient to  warrant  a  prudent person  in            believing that the defendant  had committed or was committing            an offense."   Torres-Maldonado, 14  F.3d at 105.   See  also                           ________________                     _________            Beck v. Ohio, 379 U.S. 89, 91 (1964).            ____    ____                      "Of course, probable cause  must exist with respect            to each person arrested, and 'a person's  mere propinquity to            others independently suspected of criminal activity does not,            without  more,  give rise  to probable  cause to  search that            person.'"  Martinez-Molina, 64 F.3d at 726 (quoting Ybarra v.                       _______________                          ______            Illinois,  444 U.S. 85, 91 (1979)).  "[C]ases in which courts            ________            find   that   probable   cause   exists   generally   involve            substantially more  than a  momentary, random,  or apparently            innocent  association  between the  defendant  and  the known            criminal   activity."    Martinez-Molina,   64  F.3d  at  727                                     _______________            (discussing cases).                      Here, prior to seizing Vasquez, the agents had been            investigating Pagan and his  drug trafficking operations  for            several  years.  Before the  events of this  case, the agents            had  learned from  informants that  Pagan was  trafficking in            kilogram quantities of cocaine,  shipping it from Puerto Rico            to Hartford, Connecticut and Springfield, Massachusetts.  The            agents had learned that Pagan used couriers to  transport the            cocaine.  Some of  Pagan's couriers had been arrested  at the                                         -10-            San Juan airport with  several kilograms of cocaine  in their            luggage and had admitted to working for Pagan.                      Two  confidential informants  who  had each  proved            reliable in related  matters had told  DEA agents that  among            the many vehicles Pagan used to transport drugs and money was            a white Isuzu Trooper.   They each also related  that Pagan's            transport  vehicles  often had  a  concealed, electronically-            controlled compartment used to hide whatever was being moved.            One  of them asserted  that he had seen  that the white Isuzu            Trooper  had such a compartment  in the floor  under the rear            seat.                      The  agents  had  also  learned  from  one  of  the            informants  and from  other sources  that Pagan's  girlfriend            lived in apartment D-219 at the Connecticut apartment complex            and that  Pagan used that  apartment in his  drug activities.            The apartment was  listed under the name "J. Pagan."  The DEA            had installed   a pen  register on the  apartment's phone  so            they could track calls made to and from that number.                      On October  17, 1994,  the pen register  revealed a            sharp  increase  in  phone   activity  from  the  Connecticut            apartment.  Some of the numbers being called matched cellular            phone  and beeper  numbers that the  agents knew  belonged to            Pagan's  previously identified drug  associates.   The agents            decided  to begin  physical  surveillance of  the Connecticut            apartment.    This  surveillance  included  agents  stationed                                         -11-            around the apartment complex and two agents who were equipped            with a  video camera  in  an apartment  that  had a  view  of            Pagan's apartment.                      A  little after  noon on  October 18th,  the agents            observed a Lexus and a Lincoln Town Car enter the apartment's            parking lot.   The various  movements of people  and vehicles            that  followed,  coupled  with the  DEA's  information  about            Pagan's  drug  dealing,   strongly  indicated  that  a   drug            transaction was taking place.   Acosta, who had been  driving            the  Lexus, entered  Pagan's  apartment building  followed by            Rodriguez, carrying  a large  black shoulder bag.   Rodriguez            handed this bag to Acosta in the building's lobby.  Later on,            the agents saw Acosta talking to Pagan on Pagan's balcony.                      Vasquez  exited  the  Lexus   and  walked  over  to            Rodriguez  and the Lincoln carrying a  cellular phone, one of            the "well known tools of the  drug trade."  United States  v.                                                        _____________            De La Cruz, 996 F.2d 1307, 1311 (1st Cir.), cert. denied, 510            __________                                  ____________            U.S. 936 (1993).   See also Martinez-Molina, 64 F.3d  at 728.                               ________ _______________            Vasquez waited with Rodriguez inside the Lincoln until Acosta            came out  with  another man,  Jorge  Quinones, and  spoke  to            Vasquez.   Then Quinones left,  returning shortly in  a brown            Oldsmobile.   Vasquez and  Rodriguez got into  the Oldsmobile            and drove out of the complex.                      An hour or so  later Vasquez and Quinones returned,            followed  by Rodriguez in a  white Isuzu Trooper, exactly the                                         -12-            car  the agents had been  told Pagan used  to transport drugs            and drug  proceeds.  It was  also the vehicle said  to have a            hidden compartment for drugs and money in the floor under the            rear  seat.  While Pagan stood on his balcony overlooking the            parking lot,  Acosta and  Rodriguez were  seen to  be looking            into the Isuzu's back seat area, where the secret compartment            was said to be located.                      At  this point,  the agents  had probable  cause to            believe that Vasquez, Rodriguez, Acosta, Pagan,  and Quinones            were involved in a  drug transaction, with the  Isuzu Trooper            likely  bearing  the  contraband.   Rather  than  arrest  the            suspects immediately,  the agents  chose to follow  the Isuzu            Trooper and the Lexus as they drove to Boston.                      What  happened  thereafter      beginning  with the            drive  in  tandem  to  Boston  and  ending  with the  agents'            intervention     was wholly consistent with  the existence of            an   unfolding   drug   transaction   and   Vasquez's  active            involvement.   Vasquez and Rodriguez stood on a Boston street            corner, apparently checking the area for  police.  Later, and            after the agents had seen Acosta speak to Cleveland and Gray,            the  agents spotted Vasquez inside the Mazda, to which he had            moved from the  Lexus.   Vasquez was still  inside the  Mazda            with  Cleveland  when the  agents  stopped  the vehicles  and            ordered everyone out.                                         -13-                      By this  time, the agents had  abundant evidence to            constitute  probable cause  that Vasquez  was involved  in an            ongoing drug trafficking crime  and that his association with            the other  suspects was  not momentary, random,  or innocent.            They had  authority, therefore,  at the  time he  was ordered            from the  Mazda  and  handcuffed,  to arrest  Vasquez.    The            district court  did  not  err in  refusing  to  suppress  the            various  items later found  on Vasquez's  person when  he was            searched.            B.  The Reasonable Doubt Instruction:            ____________________________________                      Vasquez  asserts that  the district court  erred in            refusing  to  include  "hesitate  to  act"  language  in  its            reasonable doubt instruction.  In particular, Vasquez insists            that, upon  his objection to  the omission, the  court should            have complied with  his request  to tell the  jury, "When  we            talk about a  reasonable doubt,  we mean a  doubt based  upon            reason and common sense, the kind of  doubt that would make a            reasonable person hesitate to act."                        The  short answer  to  this argument  is that  this            court  has explicitly held that a district court's refusal to            include  "hesitate to  act"  language in  its explanation  of            reasonable doubt  to the jury does  not constitute reversible            error.   See United States v.  Vavlitis, 9 F.3d 206, 212 (1st                     ___ _____________     ________            Cir.  1993); United States v.  O'Brien, 972 F.2d  12, 15 (1st                         _____________     _______            Cir.  1992).    Although  we  accepted  an  instruction  that                                         -14-            included such language  in United States  v. Drake, 673  F.2d                                       _____________     _____            15, 21 (1st Cir. 1982), we have also criticized the "hesitate            to  act" formulation.  See  Gilday v. Callahan,  59 F.3d 257,                                   ___  ______    ________            264  (1st Cir.  1995) (characterizing  the "hesitate  to act"            language as  "arguably unhelpful"), cert. denied,  116 S. Ct.                                                ____________            1269  (1996);   O'Brien,  972  F.2d  at   15-16  (criticizing                            _______            instructions such as the  "hesitate to act" formulation which            compare reasonable  doubt to the decisional  standard used by            individual jurors  in their  own affairs as  trivializing the            constitutionally required burden of proof).                        The  Supreme Court has stated that the Constitution            does not require district  courts to define reasonable doubt,            nor does it require trial courts who do choose to explain the            term  to employ  "any  particular  form of  words  .  . .  in            advising  the  jury of  the  government's  burden of  proof."            Victor v. Nebraska, 511 U.S. 1, 5 (1994).  "Rather, 'taken as            ______    ________            a whole,  the instructions must correctly  convey the concept            of reasonable doubt to  the jury.'"  Id. (quoting  Holland v.                                                 ___           _______            United States, 348 U.S. 121, 140 (1954)).            _____________                      In instructing  the jury  on reasonable  doubt, the            district court stated:                      As I  have said,  the burden is  upon the                      Government to prove  beyond a  reasonable                      doubt  that a defendant  is guilty of the                      charge made against the defendant.  It is                      a strict  and heavy burden,  but it  does                      not mean that a defendant's guilt must be                      proved  beyond  all possible  doubt.   It                      does  require  that the  evidence exclude                                         -15-                      any   reasonable   doubt   concerning   a                      defendant's guilt.                           A  reasonable  doubt  may arise  not                      only from the  evidence produced but also                      from  a  lack  of  evidence.   Reasonable                      doubt  exists  when,  after weighing  and                      considering   all  the   evidence,  using                      reason  and  common sense,  jurors cannot                      say that they  have a settled  conviction                      of the truth of the charge.                           Of course, a  defendant is never  to                      be convicted on suspicion  or conjecture.                      If, for example, you view the evidence in                      the case as reasonably  permitting either                      of   two  conclusions       one   that  a                      defendant is guilty as charged, the other                      that the  defendant is not  guilty    you                      will find the defendant not guilty.                           It   is   not  sufficient   for  the                      Government  to  establish a  probability,                      though a strong one, that a  fact charged                      is more likely to  be true than not true.                      That is not enough  to meet the burden of                      proof  beyond reasonable  doubt.   On the                      other  hand, there are very few things in                      this  world that  we  know with  absolute                      certainty, and in criminal cases  the law                      does  not  require  proof that  overcomes                      every possible doubt.                           Concluding  my  instructions on  the                      burden,  then, I  instruct you  that what                      the Government must do to  meet its heavy                      burden is  to establish the truth of each                      part  of each  offense  charged by  proof                      that convinces you and leaves you with no                      reasonable doubt, and thus  satisfies you                      that you can, consistently with your oath                      as jurors, base your verdict upon it.  If                      you  so  find as  to a  particular charge                      against  a defendant,  you will  return a                      verdict of guilty on that charge.  If, on                      the  other hand,  you  think  there is  a                      reasonable   doubt   about  whether   the                      defendant  is  guilty  of   a  particular                      offense,  you must give the defendant the                                         -16-                      benefit  of  the   doubt  and  find   the                      defendant not guilty of that offense.                      This explanation correctly  conveyed the concept of            reasonable doubt to the jury.                               III.  Cleveland and Gray            A.  The Vehicle Searches:            ________________________                      In their  first point of error,  Cleveland and Gray            argue that  the  district court  erred in  refusing to  grant            their motion  to suppress the  evidence found in  the agents'            search of the Isuzu Trooper and of the Mazda.                      "A police officer  may effect a  warrantless search            of the interior of  a motor vehicle on a  public thoroughfare            as long  as he has probable cause to believe that the vehicle            contains contraband or other  evidence of criminal activity."            United States v. Staula,  80 F.3d 596, 602 (1st  Cir.), cert.            _____________    ______                                 _____            denied, 117  S. Ct.  156 (1996).   See  also   California  v.            ______                             _________   __________            Acevedo, 500 U.S. 565, 570  (1991); Chambers v. Maroney,  399            _______                             ________    _______            U.S. 42,  46-52 (1970); United States  v. Martinez-Molina, 64                                    _____________     _______________            F.3d 719, 730 (1st Cir. 1995).  When the police have probable            cause  to  search a  vehicle,  they  may  also search  closed            containers within  that vehicle.   See  Acevedo, 500  U.S. at                                               ___  _______            569-81.                      Even assuming that Cleveland and Gray have standing            to  contest   the  searches  in  this   case,  a  problematic            proposition in itself, the  agents clearly had probable cause                                         -17-            to search the vehicles.  As explained in Part II-A, above, by            the time the agents  stopped the two cars, they  had probable            cause  to believe that the defendants were involved in a drug            transaction and  that the Trooper contained  contraband.  The            movements of the  Mazda in following the  Lexus to rendezvous            with the Isuzu, when combined with the exchange  of personnel                Gray moving into the Isuzu and Vasquez entering the Mazda                provided the agents  with probable cause  to believe that            Cleveland and Gray were also involved in the drug transaction            and  that the  Mazda contained  contraband.   The warrantless            search thus  did not  violate the Fourth  Amendment, and  the            district  court  did not  err  in  refusing to  suppress  the            evidence found in the two vehicles.            B.  Gray's Statement:            ____________________                      In  the next point of error,  Gray asserts that the            district court  should have suppressed the  statement he made            to Agent Travers  in the DEA office  after his arrest.   Gray            claims that he had invoked his right to counsel before making            the statement and that the agents  coerced the statement from            him through intimidation.                      The district  court, after holding  two evidentiary            hearings  at  which it  heard  the testimony  of  Gray, Agent            Travers, and  another agent  present at DEA  headquarters the            night  of  Gray's  arrest,  concluded  that  Gray's   various            allegations  of  coercive activity  by  the  agents were  not                                         -18-            credible.  The court  also found that Gray had  initiated the            conversation  with the agents  that led to  his confession by            knocking  on the  door of  his cell.   Gray  then told  Agent            Travers that he  wished to  speak with him  about the  events            leading up to his arrest and  signed a written waiver of  his            rights.   After examining the  record, we believe  that these            findings  of  fact by  the  district court  were  not clearly            erroneous.  See United  States v. Valle, 72 F.3d  210, 213-14                        ___ ______________    _____            (1st  Cir. 1995)  ("In reviewing  orders granting  or denying            suppression   motions,  this  court  scrutinizes  a  district            court's   factual   findings,   including   its   credibility            determinations, for traces of clear error.").                      In  this  case, as  in  Valle, "whether  or  not to                                              _____            suppress   the  challenged   statements  boils   down  to   a            credibility  call"  and  "[s]uch  calls  are  grist  for  the            district court's mill."  Valle, 72  F.3d at 214.  Since  Gray                                     _____            initiated  the  contact  with  the  agents  that led  to  his            statement after  he had  invoked his  right  to counsel,  the            district court was  correct to deny  the motion to  suppress.            See  Edwards v. Arizona, 451 U.S. 477, 484-86 (1981) (holding            ___  _______    _______            that once a defendant  has asked for an attorney,  she is not            subject to  further interrogation  by the police  until after            counsel has  been made  available to  her unless  she herself            initiates further communication with the authorities); United                                                                   ______            States  v.  Fontana, 948  F.2d  796, 805-06  (1st  Cir. 1991)            ______      _______                                         -19-            (noting that  initiation of interrogation by  the accused has            been  broadly interpreted);   Watkins  v. Callahan,  724 F.2d                                          _______     ________            1038, 1042 (1st Cir.  1984) (stating that "an accused  is not            powerless to countermand an election to talk to counsel").                        Similarly, we  find no clear error  in the district            court's  determination that  the  agents did  not commit  the            coercive acts alleged by  Gray.  See United States  v. Burns,                                             ___ _____________     _____            15 F.3d  211,  216 (1st  Cir. 1994)  ("Although the  ultimate            issue  of  voluntariness  is a  question  of  law  subject to            plenary  review,   we  will  accept   the  district   court's            subsidiary  findings  of   fact  unless  they   are  'clearly            erroneous.'").                      Based on the facts as found by the district  court,            the court's  holding that Gray's statement  was voluntary and            therefore  admissible at  trial  under 18  U.S.C.    3501 was            proper.                      The court applied the totality of the circumstances            test  mandated  by 18  U.S.C.     3501(b), paying  particular            attention to the factors  identified by that section.2   Gray                                            ____________________            2.  18 U.S.C.   3501(b) states:                    (b) The  trial judge  in determining the  issue of                    voluntariness  shall  take into  consideration all                    the  circumstances surrounding  the giving  of the                    confession,  including  (1)   the  time   elapsing                    between  arrest and  arraignment of  the defendant                    making the confession, if it was made after arrest                    and before arraignment, (2) whether such defendant                    knew  the nature of the offense  with which he was                    charged or of  which he was suspected at  the time                    of making the confession,  (3) whether or not such                                         -20-            gave his statement within  six hours of his  arrest, bringing            this  case within  the rule of    3501(c).3   The court found            that Gray  knew the  nature of  the offense  of which  he was            suspected  at the time he  made the confession;  knew that he            was not required to make any statement and that any statement            he did make could  be used against him; and had  been advised            prior  to the questioning of  his right to  the assistance of            counsel.  The court acknowledged  that Gray had been  without            the  assistance of  counsel when  he gave his  statement, but            held  that  in  this  case,  this fifth  factor  was  heavily                                            ____________________                    defendant  was advised  or  knew that  he was  not                    required to  make any statement and  that any such                    statement could  be used against him,  (4) whether                    or not  such defendant  had been advised  prior to                    questioning  of his  right  to  the assistance  of                    counsel; and (5) whether or not such defendant was                    without the assistance of counsel  when questioned                    and when giving such confession.                      The  presence or  absence of  any of  the above-                    mentioned factors to  be taken into  consideration                    by the judge need  not be conclusive on the  issue                    of voluntariness of the confession.            3.  18 U.S.C.   3501(c) states, in relevant part:                    (c)  In any  criminal  prosecution  by the  United                    States  .  . .  a confession  made  or given  by a                    person  who is  a  defendant  therein, while  such                    person  was  under  arrest  .  .  .  shall  not be                    inadmissible solely  because of delay  in bringing                    such  person before  a magistrate  . .  . if  such                    confession was made or given by such person within                    six  hours  immediately  following his  arrest  or                    other detention . . . .                                         -21-            outweighed  by  the  other four  factors  and  by the  case's            particular circumstances.                      We  agree  with  the  district  court  that  Gray's            statement was voluntary.            C.  The "Carry" Issue:            _____________________                      Cleveland and  Gray pleaded guilty to  violating 18            U.S.C.   924(c)(1).   That statute imposes a five-year prison            term  on anyone who, "during and in  relation to any crime of            violence  or drug trafficking  crime . . .  uses or carries a            firearm."   18 U.S.C.   924(c)(1).  After the Supreme Court's            opinion  in  Bailey, they  both  sought  revocation of  their                         ______            convictions based on guilty pleas to the   924(c)(1) charges.            Gray,  against whom  judgment had not  yet entered,  filed an            unsuccessful Motion  to Correct Sentence under  Fed. R. Crim.            P. 35(c),  and Cleveland,  against whom judgment  had entered            and whose direct appeal was already pending, filed an equally            unavailing  motion  under  28  U.S.C.    2255.    The various            appeals were  consolidated.  The government  does not dispute            our  jurisdiction to  consider  on the  merits Cleveland  and            Gray's claims that their guilty pleas are invalid in light of            Bailey.   Since we reject those claims, we do not address any            ______            potential jurisdictional question stemming from Cleveland's              2255 appeal.                      The broad definition of "use" formerly employed  by            this  circuit  and under  which  Cleveland  and Gray  pleaded                                         -22-            guilty was  unanimously disapproved  by the Supreme  Court in            Bailey.   Stating the  need to interpret  statutory terms  in            ______            accordance  with their  "ordinary  or natural"  meaning,  the            Court relied on the dictionary definition of "use" in holding            that  a conviction under the "use" prong of the statute could            only  be  upheld  if  the defendant  "actively  employed  the            firearm  during  and in  relation  to  the predicate  crime."            Bailey, 116 S. Ct. at 506-509.  Mere possession or storage of            ______            the weapon is insufficient.  Id. at 508-09.                                         ___                      Under   Bailey,  Cleveland   and  Gray   cannot  be                              ______            convicted under   924(c)'s "use" prong.  The guns remained in            the Mazda's trunk throughout  the events in question; neither            Cleveland nor  Gray "actively  employed" the firearm.   Their            guilty  pleas  might  still,  however, be  upheld  under  the            statute's "carry" prong.                      While  Bailey  did  not  address  the  requirements                             ______            relative  to "carry," the  Supreme Court stated  that part of            its  rationale  for  defining  "use"  more  narrowly  was  to            preserve  a separate,  nonsuperfluous  meaning  for  "carry."            Bailey, 116  S.  Ct. at  507.   The Court  wrote, "Under  the            ______            interpretation  we enunciate  today,  a firearm  can be  used            without  being carried, e.g., when  an offender has  a gun on                                    ____            display  during  a transaction,  or  barters  with a  firearm            without handling  it; and a  firearm can  be carried  without            being used, e.g., when an offender  keeps a gun hidden in his                        ____                                         -23-            clothing  throughout a drug transaction."   Id. at  507.  The                                                        ___            Court  remanded the  case for  a  determination of  whether a            defendant could  be convicted under the  "carry" prong either            for  having a gun inside  a bag in a locked  car trunk or for            having an  unloaded firearm in  a locked footlocker  inside a            bedroom closet.  Id. at 509.                             ___                      Bailey leaves us with  two questions concerning the                      ______            proper interpretation of "carry."   First, must a firearm  be            on a suspect's person to be "carried" or can one also "carry"            a firearm in a vehicle?  Second, if one can "carry" a firearm            in  a vehicle, must  the weapon be  immediately accessible to            the defendant to be "carried"?                      The  first question  is easily  answered.   We have            already held post-Bailey that a firearm can be "carried" in a                              ______            boat, a conveyance  that seems indistinguishable for  present            purposes from a  land vehicle like a  car.  United  States v.                                                        ______________            Ramirez-Ferrer, 82 F.3d 1149 (1st Cir.), cert. denied, 117 S.            ______________                           ____________            Ct. 405 (1996).                        This   result  accords  both  with  our  pre-Bailey                                                                   ______            "carry"  cases and with the holdings of the other circuits to            have considered  this issue  post-Bailey.  See,  e.g., United                                              ______   __________  ______            States  v.  Plummer,  964   F.2d  1251,  1252-54  (1st  Cir.)            ______      _______            (acknowledging  the  defendant-driver's  concession that  the            presence of  a gun in his vehicle either in the driver's seat            or on the  front passenger seat  was sufficient to  establish                                         -24-            that he had "carried" a gun under   924(c)(1)), cert. denied,                                                            ____________            506  U.S. 926 (1992); United  States v. Eaton,  890 F.2d 511,                                  ______________    _____            511-12  (1st   Cir.  1989)  (acknowledging   the  defendant's            concession that he had "carried" a gun for the purposes  of              924(c)(1) when the gun had been  under the front seat of  the            truck he  was driving), cert.  denied, 495  U.S. 906  (1990);                                    _____________            United  States  v. Giraldo,  80  F.3d 667,  677-78  (2d Cir.)            ______________     _______            (upholding a   924(c)(1) conviction for "carrying" a gun in a            car), cert. denied, 117  S. Ct. 135 (1996); United  States v.                  ____________                          ______________            Mitchell,  No. 95-5792, 1997 WL 12115, at *2-4 (4th Cir. Jan.            ________            15,  1997) (same); United States v. Fike, 82 F.3d 1315, 1327-                               _____________    ____            28 (5th Cir.) (stating that a gun may be "carried" in a car),            cert. denied,  117 S.  Ct.  241-42 (1996);  United States  v.            ____________                                _____________            Riascos-Suarez,  73 F.3d  616, 623  (6th Cir.)  (same), cert.            ______________                                          _____            denied, 117 S. Ct.  136 (1996); United States v.  Molina, 102            ______                          _____________     ______            F.3d 928,  930-32 (7th  Cir. 1996)  (same); United States  v.                                                        _____________            Willis,  89  F.3d  1371,  1377-79 (8th  Cir.)  (same),  cert.            ______                                                  _____            denied, 117 S. Ct.  273 (1996); United States v.  Staples, 85            ______                          _____________     _______            F.3d 461, 464 (9th Cir.) (same), cert. denied, 117 S. Ct. 318                                             ____________            (1996);  United States v. Miller, 84 F.3d 1244, 1256-61 (10th                     _____________    ______            Cir.) (same),  cert. denied,  117 S.  Ct. 443  (1996); United                           ____________                            ______            States v. Farris, 77 F.3d 391, 395 (11th Cir.) (upholding a              ______    ______            924(c)(1) conviction  for "carrying" a  gun in a  car), cert.                                                                    _____            denied, 117 S. Ct. 241 (1996).            ______                                         -25-                      On the  second question, we agree  with the Fourth,            Seventh and Tenth Circuits that  a gun may be "carried"  in a            vehicle for  the purposes of    924(c)(1) without necessarily            being  immediately accessible  to the  defendant while  it is            being  transported.  See Miller, 84 F.3d at 1260; Molina, 102                                 ___ ______                   ______            F.3d at 930-32; Mitchell, at *3.                            ________                      Since   Bailey,  this   Circuit  has   twice  faced                              ______            questions  concerning  the  scope  of the  statute's  "carry"            prong.  In United States v. Manning, 79  F.3d 212 (1st Cir.),                       _____________    _______            cert.  denied, 117 S. Ct. 147 (1996), we held that carrying a            _____________            briefcase  containing  a gun,  pipe  bombs,  drugs, and  drug            paraphernalia   was  sufficient   to   fulfill  the   "carry"            requirement.  In Ramirez-Ferrer,  already noted, we held that                             ______________            a loaded revolver covered by a T-shirt within the defendant's            reach on  a cocaine-laden boat  upon which the  defendant was            travelling  was  being  "carried"   for  the  purposes  of               924(c)(1).  In neither  case, however, did we have  to decide            whether  a firearm  in  a vehicle  in  which a  defendant  is            travelling  needs to be within easy reach to be "carried" for            the purposes of   924(c)(1).                      Since some  circuits have, since  Bailey, continued                                                        ______            to  rely upon their pre-Bailey  "carry" case law,  we look at                                    ______            ours as  well, but find  no case that  is entirely  on point.            See, e.g., United States v. Castro-Lara, 970 F.2d 976, 982-83            _________  _____________    ___________            (1st  Cir. 1992)  (upholding a  conviction under    924(c)(1)                                         -26-            when the gun was in a briefcase in a locked car trunk without            specifying whether  the  conviction was  under the  statute's            "use" or "carry"  prong), cert. denied, 508  U.S. 962 (1993);                                      ____________            Plummer,  964 F.2d  at 1252-54 (acknowledging  the defendant-            _______            driver's concession that the presence of a gun in his vehicle            either  in the driver's seat  or on the  front passenger seat            was sufficient to establish that he had "carried" a gun under              924(c)(1));  Eaton, 890  F.2d at 511-12  (acknowledging the                           _____            defendant's concession  that he had  "carried" a gun  for the            purposes of   924(c)(1) when the gun had been under the front            seat of the truck he was driving).                      "When a word is not defined by statute, we normally            construe it in accord with its ordinary or natural  meaning."            Smith v. United States, 508 U.S. 223, 228 (1993).  In Bailey,            _____    _____________                                ______            the Supreme  Court  turned  to  the dictionary  for  help  in            determining  the meaning of "use," Bailey, 116 S. Ct. at 506,                                               ______            so we do the same with "carry."                      Webster's Third New International Dictionary of the                      ___________________________________________________            English Language Unabridged 343 (3d ed. 1971) defines "carry"            ___________________________            as, "1:   to move  while supporting  (as in a  vehicle or  in            one's hands or  arms):  move an  appreciable distance without            dragging:   sustain as a  burden or  load and bring  along to            another  place."    Webster's  goes on  to  list  many  other                                _________            definitions of the word  and then, in differentiating "carry"            from some of its synonyms, states:                                         -27-                      CARRY indicates moving to a location some                      distance   away   while   supporting   or                      maintaining  off  the   ground.     Orig.                      indicating movement by car or cart, it is                      a natural word to  use in ref. to cargoes                      and  loads  on  trucks,  wagons,  planes,                      ships, or even beasts of burden.            Id.    This  definition,  therefore,  clearly   includes  the            ___            transport of a firearm by car; the concept of  whether or not            the  carried  item  is within  reach  plays  no  part in  the            definition.                      Black's Law  Dictionary 214 (6th ed.  1990) defines                      _______________________            "carry" as, "To bear, bear about, sustain, transport, remove,                                                       _________            or convey.  To have or bear upon or about one's  person, as a               ______            watch  or weapon;  locomotion not  being essential  . .  . ."            (emphasis supplied).   However, Black's  defines the specific                                            _______            phrase "carry arms  or weapons" more  narrowly as, "To  wear,            bear, or  carry them upon the person or in the clothing or in            a pocket, for the purpose of use, or for the purpose of being            armed  and ready for offensive or defensive action in case of            a conflict with another person."  Id.                                              ___                      The latter  Black's  definition of  "carry arms  or                                  _______            weapons" limits  "carrying" to the defendant's  person and so            at least  implies accessibility.  However,  even the circuits            which have read an  immediate accessibility requirement  into            "carry" under    924(c)(1)  have never limited  the statutory            language to "carrying" a firearm on the person.  Indeed, such            circuits, like  the others  to confront  the issue,  have all                                         -28-            upheld convictions for  "carrying" a  weapon in a  car.   See                                                                      ___            United States v. Cruz-Rojas, 103 F.3d 283, 286 (2d Cir. 1996)            _____________    __________            (remanding  two "carry"  convictions  to determine  if a  gun            under a car's dashboard  was accessible to either defendant);            Riascos-Suarez,  73   F.3d  at   623  (upholding  a   "carry"            ______________            conviction when the gun was in a car near the driver's seat);            United States v. Willett, 90 F.3d 404, 406-07 (9th Cir. 1996)            _____________    _______            (holding  that  a  gun  transported in  a  car  was "carried"            because it was easily accessible).                      We  strongly doubt      given the  omnipresence  of            automobiles in today's  world and in drug dealing,  and given            the  basic  meaning  of  "carry" as  including  transport  by            vehicle    that Congress, in prescribing liability for anyone            who "uses  or carries" a firearm  during or in relation  to a            drug trafficking  offense, meant  to exclude a  defendant who            transports the gun in his car, rather than on his person, for            use  in a drug transaction.  Hence the Black's Law Dictionary                                                   ______________________            restricted definition  of the phrase "carry  arms or weapons"            seems inapposite here.                      It is  true,  of  course,  that  to  come  under               924(c)(1), "the firearm must have some purpose or effect with            respect  to  the  drug  trafficking crime;  its  presence  or            involvement cannot be the result of accident or coincidence."            Smith,  508  U.S.  at  238.    In  certain  circumstances,  a            _____            firearm's immediate  accessibility to  a  defendant might  be                                         -29-            relevant to determining  whether or  not he  was carrying  it            "during  and in relation to" a drug trafficking crime, as the            statute requires.  18 U.S.C.   924(c)(1).  But a firearm need            not  always be  instantly accessible in  order to  be carried            "during  and in relation to" a drug trafficking crime.  Here,            the  evidence shows that the defendants  had placed the three            firearms in question in the Mazda's trunk and, when arrested,            were carrying them for the purpose of using them to rob their            suppliers   during  the   ongoing  drug   trafficking  crime.            Evidence of  this purpose plainly  demonstrated the necessary            nexus  to  the drug  trafficking  offense  wholly apart  from            whether the  guns were  within the  immediate reach  of those            seated in  the car  at  the time  they  were stopped  by  the            agents.                        As  noted  above, the  Fourth,  Seventh,  and Tenth            Circuits have  held that  a gun does  not need to  be readily            accessible  to be "carried" in  a vehicle.   See Mitchell, at                                                         ___ ________            *2-4; Molina, 102 F.3d at 930-32; Miller, 84 F.3d at 1256-61.                  ______                      ______                      Other circuits, while  not explicitly deciding  the            issue  one  way or  the other,  appear  to be  leaning toward            adopting the  same approach.   See  United States  v. Pineda-                                           ___  _____________     _______            Ortuno,  952 F.2d  98, 103-04 (5th  Cir.) (a  pre-Bailey case            ______                                            ______            holding that the circuit's cases requiring a showing that the            gun was within the defendant's reach during the commission of            the drug offense did not apply  when the gun was "carried" in                                         -30-            a vehicle), cert. denied, 504 U.S.  928 (1992); United States                        ____________                        _____________            v. Fike, 82 F.3d 1315, 1327-28 (5th Cir. 1996) (a post-Bailey               ____                                                ______            case upholding a defendant's conviction under   924(c)(1) for            "carrying"  a gun that was within his  reach in a car but not            stating that  accessibility was a requirement); United States                                                            _____________            v. Rivas,  85  F.3d  193,  194-96 (5th  Cir.)  (same),  cert.               _____                                                _____            denied,  117 S. Ct. 593  (1996); United States  v. Willis, 89            ______                           _____________     ______            F.3d  1371, 1377-79  (8th Cir.  1996) (relying  on pre-Bailey                                                                   ______            case law to hold that transporting a firearm in the passenger            compartment of a  vehicle satisfies  the "carry"  prong of               924(c)(1) but  not  addressing the  weapon's  accessibility);            United States  v. Caldwell, 97  F.3d 1063, 1068-70  (8th Cir.            _____________     ________            1996)  (upholding a  conviction under    924(c)(1)'s  "carry"            prong for  a case in which the defendant's gun was in a car's            hatchback, an  area the court  regarded as  within the  car's            occupants' reach); United  States v. Farris, 77 F.3d 391, 395                               ______________    ______            (11th  Cir. 1996) (relying on pre-Bailey case law to uphold a                                              ______              924(c)(1) conviction for a defendant who was sitting in the            back  seat of a car while the  firearm in question was in the            glove compartment  but not  discussing whether  the defendant            could easily have reached the gun).                      We  recognize  that the  Second,  Sixth,  and Ninth            Circuits have  taken a contrary position,  requiring that the            firearms be immediately accessible.  See Giraldo, 80  F.3d at                                                 ___ _______                                         -31-            676-78; Riascos-Suarez,  73 F.3d at 623-24;  Staples, 85 F.3d                    ______________                       _______            at 464.  We find the reasoning of these courts unpersuasive.                      In Giraldo,  the Second Circuit  relied entirely on                         _______            its pre-Bailey case United  States v. Feliz-Cordero, 859 F.2d                    ______      ______________    _____________            250 (2d Cir.  1988), in holding that  a gun transported  in a            vehicle must be immediately accessible to be "carried."   But            Feliz-Cordero merely stated that  "carry" should be given its            _____________            literal meaning.  The court thought that  the literal meaning            of  "carry,"  when  the "carrying"  was  done  by  a vehicle,            required  the gun to be within reach during the commission of            the drug offense.  Feliz-Cordero, 859 F.2d at 253.  The court                               _____________            did not refer to any authority for this proposition and cited            to  only one case, United States v. Brockington, 849 F.2d 872                               _____________    ___________            (4th Cir. 1988).  Brockington does  not so much as mention an                              ___________            immediate accessibility requirement, nor does  it discuss the            meaning of "carry."   The only  relevance Brockington has  to                                                      ___________            this issue is that that  panel upheld the "carry"  conviction            of  a taxi cab  passenger who had  a loaded pistol  under the            floormat beneath his seat.                        The  Sixth Circuit  in Riascos-Suarez  inferred the                                             ______________            immediate availability  requirement from the  Supreme Court's            admonitions  in  Bailey  that   "use"  must  mean  more  than                             ______            "possession," Bailey, 116 S. Ct. at 508, and that a defendant                          ______            could not  be charged under   924(c)(1) for mere storage of a            weapon, id.   The easy reach  requirement, the Riascos-Suarez                    ___                                    ______________                                         -32-            panel  reasoned,  is necessary  to  distinguish  "carry" from            possession and storage.  Riascos-Suarez, 73 F.3d at 623.                                     ______________                      We disagree.   We question  the degree to  which an            easy  reach  requirement  would  differentiate  "carry"  from            "possess."  More importantly, we agree with the Tenth Circuit            that the distinguishing characteristic  of "carry" is not the            instant  availability of the item  carried, but the fact that            the item  is being  moved from  one place  to another by  the            carrier,  either   personally  or   with  the  aid   of  some            appropriate vehicle.  See Miller, 84 F.3d at 1260.                                  ___ ______                      The  Ninth  Circuit's  decision  in  Staples relied                                                           _______            primarily  on  its  earlier   opinion  in  United  States  v.                                                       ______________            Hernandez,  80 F.3d  1253, 1256-58  (9th Cir.  1996) (holding            _________            that a  gun in  a locked  toolbox was  not "carried"  under              924(c)(1)),  in stating that a firearm  had to be immediately            available  for use  to  be  "carried"  in  a  vehicle.    The            Hernandez  panel  looked  to  find the  ordinary  or  natural            _________            meaning  of  "carry."    But  its  quotation  from  Webster's                                                                _________            definition  of "carry,"  supra, was  selective,  omitting the                                     _____            definition's references  to vehicles.  The  court also quoted            from Black's definition of the  single phrase, "carry arms or                 _______            weapons," supra, and cited the Sixth Circuit's Riascos-Suarez                      _____                                ______________            opinion.  As we have discussed, however, the ordinary meaning            of the term "carry" includes transport by vehicle and affords            no basis for imposing an accessibility requirement.                                         -33-                      Turning to  the case before us,  both Cleveland and            Gray pled  guilty to using or carrying a weapon during and in            relation  to a  drug trafficking  offense.   They do  not now            contend, nor could they, that the three loaded handguns found            in the trunk of their car  alongside rope and duct tape  were            unrelated  to   the  drug   trafficking  offense   they  were            committing  at  the time  they  were apprehended.    In fact,            Cleveland  admitted at  the suppression  hearing that  he and            Gray  intended to use  the guns to  rob the  drugs from their            suppliers.  Their  challenge to  their convictions  on the               924(c)(1)  charge consists  solely of  the claim  that, after            Bailey, they can  not be convicted under  the statute's "use"            ______            prong  and that  a conviction under  the "carry"  prong would            require  the guns to have  been easily accessible.   As under            the  standard  definition  of  "carry" the  guns  were  being            "carried," and as  we can see no  basis for holding  that the            guns' lack of instant accessibility precluded them from being            "carried," we affirm  Cleveland's and Gray's  convictions for            violations of 18 U.S.C.   924(c)(1).                      Affirmed.                      ________                                         -34-
