          United States Court of Appeals
                     For the First Circuit

No. 10-1365

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      RAMÓN DE JESÚS-VIERA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. Garcia-Gregory, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
               Boudin and Howard, Circuit Judges.



     Robert Herrick for defendant-appellant.
     Luke Cass, Assistant United States Attorney, with whom Nelson
Pérez-Sosa, Chief, Appellate Division, and Rosa Emilia Rodriguez-
Velez, United States Attorney, were on brief for appellee.



                         August 24, 2011
            LYNCH, Chief Judge.        United States Customs and Border

Patrol (CBP) officers seized over two kilograms of heroin and

ninety-six kilograms of cocaine from Ramón De Jesús-Viera's vehicle

during a border search conducted upon De Jesús-Viera's return to

Puerto Rico from the Dominican Republic.           A jury convicted De

Jesús-Viera on one count of knowingly and intentionally possessing

heroin and cocaine with intent to distribute in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A) and one count of knowingly and

intentionally importing to the United States heroin and cocaine in

violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A), (B).              The

district    court   sentenced     De     Jesús-Viera   to   188   months'

imprisonment.

            De Jesús-Viera appeals, challenging both his conviction

and his sentence.    He argues the district court erred in denying

his motion to suppress the evidence recovered from his vehicle, it

erred when it instructed the jury on a willful blindness theory,

and the evidence is insufficient to support his conviction.           He

also argues the district court erred by denying his request for an

offense-level reduction for playing a minor role in the criminal

activity.    See U.S.S.G. § 3B1.2(b).

            We affirm the conviction and the sentence.

                                   I.

            Because De Jesús-Viera questions the sufficiency of the

evidence supporting his conviction, we relate the facts in the


                                   -2-
light   most   favorable    to   the    verdict.        See   United      States    v.

DeCologero, 530 F.3d 36, 47 (1st Cir. 2008).

           In the early morning hours of July 13, 2007, De Jesús-

Viera arrived in Mayagüez, Puerto Rico, on a car and passenger

ferry from Santo Domingo, Dominican Republic.                 CBP Officer Javier

Ruíz-Toro was working in the port's primary inspection area at the

time, and De Jesús-Viera presented him with a Puerto Rico driver's

license, birth certificate, and customs declaration card.

           As is customary practice for CBP Officers, Ruíz-Toro

asked De Jesús-Viera questions to determine whether to permit his

entry or instead refer De Jesús-Viera to secondary inspection.                       In

response, De Jesús-Viera stated that he had been in the Dominican

Republic to visit friends for two weeks and had nothing to declare.

Ruíz-Toro asked De Jesús-Viera how long he had owned his vehicle,

a 1984 Chevrolet El Camino.            De Jesús-Viera replied that he had

only recently purchased it.            This raised Ruíz-Toro's suspicions

because, by training and experience, he knew that drug trafficking

organizations    often     registered        vehicles    in     a    driver's      name

immediately before using that vehicle to import drugs.                     Ruíz-Toro

pressed further, inquiring as to whether De Jesús-Viera had made

any repairs to the vehicle, which De Jesús-Viera denied.                      During

this time, De Jesús-Viera's voice was trembling, his hands and legs

were shaking,    he   was sweating        profusely,      and       he   avoided   eye

contact.   De Jesús-Viera explained his demeanor by telling Ruíz-


                                       -3-
Toro that he had a hangover, but Ruíz-Toro did not believe him.               In

light   of   De    Jesús-Viera's     demeanor   and   his   vehicle's     recent

registration, Ruíz-Toro referred him to secondary inspection.

             CBP   Officer   Jorge    Pitre,    working     in   the   secondary

inspection area, asked De Jesús-Viera about the duration and

purpose of his trip to the Dominican Republic. De Jesús-Viera said

he had been in the Dominican Republic for two weeks in order to

show off his new car, that he had not made any repairs to his car,

and that he did not have anything to declare from the Dominican

Republic.     Pitre noticed that De Jesús-Viera avoided eye contact

and was slightly shaking during the questioning.

             After questioning De Jesús-Viera, Pitre used a machine

that measures the density of an object when passed across the

surface of that object, a "buster," to inspect De Jesús-Viera's

vehicle.     The buster's readings indicated that there was a dense

object beneath the floor of one part of the vehicle.                   Given the

density readings and De Jesús-Viera's nervousness, Pitre asked CBP

Officer Isidro Mercado to cross-interview De Jesús-Viera.

             Mercado asked De Jesús-Viera about the purpose of his

trip, the amount of money he took to and from the Dominican

Republic, and whether he had made any repairs to his vehicle.                 De

Jesús-Viera responded that he had traveled with about $3,000 "to

spend . . . with girls," that he was returning with roughly $200,




                                       -4-
and that he had not made any vehicle repairs.         Mercado observed De

Jesús-Viera shaking and found him to be nervous.

            Officers Mercado and Pitre then visibly inspected the

interior and undercarriage of De Jesús-Viera's vehicle.               They

opened the doors, pushed the seats forward, and saw a large speaker

box mounted in the rear.   When the box was removed, the felt lining

underneath appeared "freshly done."         Removing a portion of the

felt, the officers smelled a chemical odor that suggested an

adhesive agent had recently been used or the area had recently been

painted.    This contradicted De Jesús-Viera's claim that he had not

made any repairs to the vehicle.           Meanwhile, another officer

inspected    its   undercarriage,    and   informed    the   others   that

"something is not right here," and that there was a bulge or

compartment underneath the area of the felt lining.

            CBP Officer Luis Henríquez, who was present for the

inspection of the car, left and returned with a drug-sniffing dog

to do a canine inspection of the vehicle.        The dog searched the

area and began scratching "very aggressively" at the portion of the

vehicle that the officers were now focused upon, signaling there

might be narcotics in that area.      After obtaining permission from

their superiors to do so, the officers drilled into the compartment

which had been discovered on the underside of De Jesús-Viera's

vehicle so as to allow a fiberoptic cable to peer inside the




                                    -5-
compartment.     It was the drilling into the undercarriage on which

the motion to suppress was based.

            Once the officers removed the drill bit, they noticed

white powder on the bit's tip.          The officers administered a field

test of the substance, and it tested positive for cocaine.

            After placing De Jesús-Viera in custody, the officers

sawed   open    the    hidden    compartment       and     extracted   sixty-three

packages.   These packages were later determined to contain a total

of 2.12 kilograms of heroin and approximately 96 kilograms of

cocaine.       They    also   discovered      a   device    with   exposed   wires;

applying an electrical current to the wires caused the compartment

to open, and reversing the wires and applying a current caused the

compartment to shut.           This type of device is commonly used in

vehicles    that      have    been   modified      specifically     to   transport

contraband.

                                        II.

            De Jesús-Viera was charged with one count of possessing

with intent to distribute one kilogram or more of heroin and five

kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(A), and one count of importing into the United States

one kilogram or more of heroin and five kilograms or more of

cocaine in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A), (B).

            On October 4, 2007, De Jesús-Viera filed a motion to

suppress the narcotics evidence seized from his vehicle on the


                                        -6-
grounds that the drilling of the vehicle was not a routine border

search and that there was no reasonable suspicion to support the

non-routine search.       The district court referred the motion to a

magistrate judge, who originally scheduled a suppression hearing

but later cancelled it.         The magistrate judge determined that "the

defendant has been fully heard on his motion with the submissions

made, and that an evidentiary hearing is not required," and issued

a recommended ruling denying De Jesús-Viera's motion to suppress on

the grounds that the drilling qualified as a routine border search.

              De    Jesús-Viera    moved       for   reconsideration      of   the

recommended ruling based on United States v. Flores-Montano, 541

U.S. 149 (2004), which he said left open the possibility that the

Fourth Amendment requires that some destructive property searches

at the border be supported by reasonable suspicion, and United

States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995), which held, without

the government's taking a contrary position, that the drilling into

a metal cylindrical container in that case was a non-routine

search. The magistrate judge issued a second recommended ruling on

December 19, 2007, rejecting De Jesús-Viera's arguments and denying

De     Jesús-Viera's     motion    for     reconsideration.         The    second

recommended ruling stated that any objections to it were due on

January 8, 2008, but De Jesús-Viera failed to make any objections.

The district court adopted the ruling on February 4, 2008, agreeing

that    the   CBP   officers'     drilling     of    De   Jesús-Viera's   vehicle


                                         -7-
qualified   as    a   routine    border       search    that   did   not    require

reasonable suspicion.

            The    jury   convicted      De    Jesús-Viera      on   both    counts

following a four-day trial from September 22, 2008, to September

25, 2008. De Jesús-Viera filed a motion for judgment of acquittal,

Fed. R. Crim. P. 29, arguing that the evidence was not sufficient

to support his conviction, and a motion for a new trial, Fed. R.

Crim. P. 33, arguing procedural errors.             The district court denied

De Jesús-Viera's motions.

            A sentencing hearing was held on February 12, 2010.                   De

Jesús-Viera argued that he was entitled to a two-level reduction in

his offense level because he played a minor role in the offense.

See U.S.S.G. § 3B1.2(b).         The district court found De Jesús-Viera

did not qualify for the two-level role adjustment, setting his

offense level at 36 and yielding a guideline range of 188 to 235

months. The court imposed a sentence of 188 months for each count,

to be served concurrently.

                                      III.

A.          Denial of De Jesús-Viera's Motion to Suppress

            We    first   reject   De    Jesús-Viera's         challenge    to   the

district court's denial of his motion to suppress the narcotics

evidence seized from his vehicle.

            By    failing   to     object      to      the   magistrate     judge's

recommended ruling, De Jesús-Viera has waived his Fourth Amendment


                                        -8-
claim.   See United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st

Cir. 2008).   The magistrate judge's December 19, 2007, recommended

ruling explicitly advised the parties that D.P.R. Civ. R. 72(d)

required that any objections be made within ten days of receiving

the ruling,1 and that failure to do so would preclude further

appellate review.2

           De Jesús-Viera also argues the denial of his suppression

motion constitutes plain error.         See Fed. R. Crim. P. 52(b).       The

four-part test for plain error requires that De Jesús-Viera show

(1) there is an error; (2) the error is plain or obvious; (3) the

error "'affected [De Jesús-Viera's] substantial rights, which in

the ordinary case means' it 'affected the outcome of the district

court proceedings;'" and (4) "the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings."

United   States   v.   Gerhard,   615    F.3d   7,   22   (1st   Cir.   2010)

(alteration in original) (quoting United States v. Marcus, 130 S.




     1
          In 2009, 28 U.S.C. § 636(b)(1) was amended to allow
parties fourteen days, not ten, to file objections to a magistrate
judge's recommended ruling. See id. Subsequently, D.P.R. Civ. R.
72(d) was amended to also allow fourteen days for objections.
     2
          De Jesús-Viera concedes that he failed to properly object
to the recommended ruling. Nonetheless, he urges us to review the
district court's denial of his suppression motion under a de novo
standard of review, reasoning that his motion for reconsideration
of the magistrate judge's first recommended ruling "clearly
expressed his position" that the CBP officers needed reasonable
suspicion to justify drilling into his vehicle.      We reject the
argument.

                                   -9-
Ct. 2159, 2164 (2010)) (internal quotation marks omitted).            He has

failed to make such a showing.

          The district court's denial of the suppression motion was

not error at all because there was more than reasonable suspicion

to search the vehicle.       The district court concluded that the

drilling into the hidden compartment in the undercarriage of De

Jesús-Viera's vehicle was a routine border search that did not

require reasonable suspicion, see Flores-Montano, 541 U.S. 149, and

distinguished our holding in Robles on its facts.         We do not decide

whether the search was a routine border search.          Even assuming the

drilling was non-routine, it was supported by ample reasonable

suspicion.   See Robles, 45 F.3d at 5-6 (non-routine border search

constitutional because supported by reasonable suspicion); id. at

5 ("We are not bound by the district court's reasoning, and will

affirm if the ruling below is supported by any independently

sufficient ground.").

          "A     finding   of   reasonable        suspicion   requires   'a

particularized    and   objective   basis   for    suspecting   the   person

stopped of criminal activity,'" United States v. Espinoza, 490 F.3d

41, 47 (1st Cir. 2007) (quoting Ornelas v. United States, 517 U.S.

690, 696 (1996)) (internal quotation marks omitted), which must be

"grounded in specific and articulable facts," id. (quoting United

States v. Hensley, 469 U.S. 221, 229 (1985)) (internal quotation

marks omitted).    The record shows an escalating sequence of events


                                    -10-
in which each step taken by the CBP officers led reasonably to the

next.3    That sequence was: (1) De Jesús-Viera was visibly nervous

and avoided eye contact with each of the officers in the chain; (2)

he told the officers that he had recently purchased his vehicle, a

recognized    indicia   the   vehicle    may   have   been      used   for   drug

trafficking; (3) De Jesús-Viera gave inconsistent answers to the

CBP   officers   when   cross-interviewed,     telling     one    officer     the

purpose of his trip to the Dominican Republic was to visit friends,

telling a second it was to show off his car, and telling a third it

was "to spend [$3000] . . . with girls;" (4) the buster scan

yielded abnormal readings indicating dense objects underneath the

floor of the vehicle; (5) a search of the car's interior found

recent    alterations   or    repairs,   contrary     to   De    Jesús-Viera's

statement that he had not made any recent repairs; (6) an agent's

view of the underside of the vehicle showed an abnormal bulge

underneath the area where the alterations to the car were found;

and finally, (7) a canine inspection of the vehicle indicated the

likely presence of narcotics.       The CBP officers had an ample basis

to reasonably suspect that De Jesús-Viera was engaged in criminal


      3
          Because the district court made no findings of fact in
denying De Jesús-Viera's motion to suppress, we review the record
de novo.   See United States v. Robles, 45 F.3d 1, 5 (1st Cir.
1995).
     Under plain error review, we may consider the entire record in
assessing whether the district court's decision affected De Jesús-
Viera's substantial rights, not just the facts available to the
district court at the time it ruled upon the suppression motion.
See United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir. 2004).

                                   -11-
activity that justified drilling into the secret compartment.    De

Jesús-Viera's Fourth Amendment claim fails.4

B.        Willful Blindness Jury Instruction

          De Jesús-Viera next argues the district court erred by

instructing the jury that, in deciding whether De Jesús-Viera acted

knowingly, the jury could "infer that the defendant had knowledge

of a fact if [it found] that he deliberately closed his eyes to a

fact that otherwise would have been obvious to him."     Because De

Jesús-Viera did not object to this instruction at trial, our review

is for plain error.   See Estate of Keatinge v. Biddle, 316 F.3d 7,

16 (1st Cir. 2002).   There was no error.

          "A willful blindness instruction is appropriate if (1) a

defendant claims a lack of knowledge, (2) the facts suggest a

conscious course of deliberate ignorance, and (3) the instruction,



     4
          We also reject De Jesús-Viera's argument that the
district court erred by ruling on the motion to suppress without
holding an evidentiary hearing. On appeal, De Jesús-Viera raises
this argument in a cursory fashion, and it is waived. See Cortés-
Rivera v. Dep't of Corr. & Rehab., 626 F.3d 21, 26 (1st Cir. 2010).
          Even if it were not waived, the argument would fail. In
reviewing a claim that a defendant was erroneously deprived of an
evidentiary hearing, we ask whether the defendant made a sufficient
threshold showing that material facts were in doubt. United States
v. Vilches-Navarrete, 523 F.3d 1, 15 (1st Cir. 2008).           "The
district court has considerable discretion in determining the need
for, and the utility of, evidentiary hearings, and we will reverse
the court's denial of an evidentiary hearing in respect to a motion
in a criminal case only for manifest abuse of that discretion."
United States v. Allen, 573 F.3d 42, 50-51 (1st Cir. 2009) (quoting
United States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996))
(internal quotation marks omitted). That standard has not been met
here.

                                -12-
taken as a whole, cannot be misunderstood as mandating an inference

of knowledge." United States v. Azubike, 564 F.3d 59, 66 (1st Cir.

2009).   De Jesús-Viera's defense hinged on a lack of knowledge of

the drugs in his vehicle.

          As an alternative to actual knowledge, the facts could be

construed to suggest a conscious course of deliberate ignorance --

that the defendant heavily suspected what he was driving was a car

with hidden narcotics.

          As to the third element, the instruction stated:

                 In order to infer knowledge, you must
          find that two things have been established:
          First, that the defendant was aware of a high
          probability of the existence of the drugs;
          second, that the defendant consciously and
          deliberately avoided learning of that fact.
          That is to say, the defendant willfully made
          himself blind to that fact.
                 It is entirely up to you to determine
          whether he deliberately closed his eyes to the
          fact and if so, what inference, if any, should
          be drawn. However, it is important to bear in
          mind that mere negligence or mistake in
          failing to learn the fact is not sufficient.
          There must be a deliberate effort to remain
          ignorant of the fact.

The court's instruction did not create the risk that the jury would

employ a negligence standard; the court explicitly instructed that

finding De Jesús-Viera acted negligently was not enough.

          Further,   as   discussed   below,   there   was   considerable

evidence that De Jesús-Viera had actual knowledge of the illegal

narcotics in his vehicle.



                                 -13-
C.           Sufficiency of the Evidence

             De Jesús-Viera argues the government failed to adequately

prove that he acted "knowingly and intentionally," an essential

element under 21 U.S.C. §§ 841(a)(1) or 952(a).

             "[W]e must affirm the conviction if after de novo review

of   the   evidence   taken   in   the   light    most    favorable   to   the

government, we conclude that a rational factfinder could find that

the government proved the essential elements of its case beyond a

reasonable doubt."      United States v. Marin, 523 F.3d 24, 27 (1st

Cir. 2008).

             Viewed in the light most favorable to the government, the

record     contains   ample   evidence     to   support   De   Jesús-Viera's

convictions.     The jury could have inferred that De Jesús-Viera

acted knowingly and intentionally from testimony that the drugs

were found in a car that De Jesús-Viera both owned and was driving,

notwithstanding the fact the drugs were concealed in a hidden

compartment.     See United States v. Barnes, 890 F.2d 545, 549 (1st

Cir. 1989) ("[K]nowledge of possession may . . . be inferred by

demonstrating dominion and control over the area where contraband

is found."); cf. United States v. Aponte, 619 F.3d 799, 804 (8th

Cir. 2010) ("[D]efendant's ownership and control over a vehicle are




                                    -14-
sufficient to infer possession of drugs therein -- even if the

drugs are concealed.").5

          The jury also could have inferred that De Jesús-Viera

knew of the presence of the illegal narcotics in his car from the

sheer amount of drugs the CBP officers found.      The jury heard

testimony that CBP officers found 2.12 kilograms of heroin and 96

kilograms of cocaine in the car and that in July 2007, the street

value of a kilogram of heroin was at least $55,000 and the street

value of a kilogram of cocaine was at least $14,000.      The jury

could have drawn the inference that De Jesús-Viera knew that the

over $1.45 million worth of drugs were in his car based on its

common sense.

          Testimony regarding De Jesús-Viera's nervous behavior --

his trembling voice, his shaking hands and legs, his profuse

sweating, his avoiding eye contact with the CBP officers -- was

also supporting evidence of guilt.

          De Jesús-Viera urges that his convictions should be

reversed because, he argues, the facts of his case are similar to


     5
          De Jesús-Viera argues that knowledge that the car
contained illegal drugs should not be attributed to him based on
his ownership of the car because "[g]overnment witnesses
acknowledged that [he] likely owned the car in name only because
contraband smugglers often register a car in a third-party's name
to enable the third-party to leave and enter the country." What De
Jesús-Viera fails to mention is that CBP Officer Ruíz-Toro told the
jury that the practice described is one characteristic of "drug
trafficking organizations" specifically, not contraband smugglers
generally. De Jesús-Viera's ownership of the car "in name only" is
evidence that supports his conviction.

                               -15-
those in United States v. Pérez-Meléndez, 599 F.3d 31 (1st Cir.

2010), where "[i]n light of the specific facts of [that] case" we

held that the evidence supporting a jury verdict was insufficient.

Id.   at   47.     De    Jesús-Viera        is     mistaken:    Pérez-Meléndez     is

distinguishable from his case.

            In   Pérez-Meléndez,           two    defendants,    commercial     truck

drivers, were convicted in a jury trial of aiding and abetting each

other to possess and distribute cocaine.                     Id. at 37, 38.      The

defendants were the driver and passenger of a truck carrying six

wrapped    pallets      of   reams    of    paper     in    which    federal   agents

discovered hidden forty kilograms of cocaine. Id. at 34. Although

the defendants offered inconsistent statements regarding whether

the truck was rented (and who rented it) or whether it was borrowed

from a friend, it was not disputed that neither of the defendants

owned the truck.        Id. at 35, 36.       The defendants had picked up the

shipment of paper, which had originated in the Dominican Republic,

from "an authorized company in Puerto Rico engaged in the lawful

business of transporting shipments from, among other places, the

Dominican Republic and which was not charged with any wrongdoing."

Id. at 45.       The shipping company provided the defendants "with

documentation     indicating         (1)    that    the    Customs    and   Treasury

departments had provided clearances on the shipment and (2) what

that shipment (supposedly) contained."                Id.




                                           -16-
           Pérez-Meléndez is easily distinguished from the present

case.   The defendants in Pérez-Meléndez did not own the truck or

the reams of paper in which the drugs were hidden; De Jesús-Viera

owned the car in which CBP agents found the cocaine and heroin.

The drugs in Pérez-Meléndez were found hidden amongst a shipment

the defendants were paid by a legitimate freight company to pick up

and deliver; De Jesús-Viera was engaged in no such seemingly

legitimate activity and the drugs were found in his personal

vehicle.   The court in Pérez-Meléndez observed that the defendants

drove "a common vehicle unequipped with weaponry or sophisticated

technology," id. at 45, and that there was "no evidence that

[defendants] themselves resisted or otherwise tried to conceal the

true nature of the shipment," id. at 46; here, De Jesús-Viera's car

had been modified to include a secret compartment that operated

electronically to conceal contraband.

D.         Offense Level Reduction for Minor Role

           Finally, De Jesús-Viera argues the district court erred

in denying his request for a two-level downward adjustment in his

sentence based on his minor role in the offense.      See U.S.S.G.

§ 3B1.2(b).   The defendant has not satisfied his burden of showing

that finding is clearly erroneous. See United States v. Bravo, 489

F.3d 1, 11 (1st Cir. 2007).

           The minor role guideline, U.S.S.G. § 3B1.2(b), "is not

applicable unless more than one participant was involved in the


                                -17-
offense," see U.S.S.G. § 3B1.2 cmt. n.2, and De Jesús-Viera had the

burden of demonstrating that there were other, more culpable

participants in the offense of conviction, see United States v.

Rosa-Carino, 615 F.3d 75, 81 (1st Cir. 2010).             The district court

based its finding largely on the fact that De Jesús-Viera had

failed to meet that burden: he offered no evidence that any other

individuals participated in the criminal activity of conviction.

             De    Jesús-Viera's       only   challenge    to     the   court's

determination is that "the record could only support a finding that

[he]   was    an    expendable   cog     in   a   sophisticated    trafficking

operation."        But it was not clearly erroneous for the district

court to reject that unsupported assertion.

                                        IV.

             The judgment of the district court is affirmed.




                                       -18-
