In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2422

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FANY MORENO,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 499-2--William T. Hart, Judge.


Argued May 9, 2000--Decided November 6, 2000



  Before MANION, KANNE, and ROVNER, Circuit Judges.

  ROVNER, Circuit Judge. Shortly after her
significant other, Evaristo Moreno, pleaded
guilty to possessing both heroin and cocaine with
the intent to distribute these narcotics, a jury
convicted Fany Moreno ("Moreno") of these same
crimes; and she is currently serving a prison
term of six and one-half years./1 Moreno now
appeals her conviction. She contends that the
prosecution was improperly permitted to elicit
the fact that her partner initially consented to
a search of their home but then withdrew his
consent after she said something to him (we do
not know what) in Spanish. Moreno characterizes
the testimony that Mr. Moreno granted, and then
withdrew, his consent, as inadmissible hearsay.
We believe that Mr. Moreno’s statements were
verbal acts, although we share Moreno’s doubts
about their probative value. Any error in
admitting the statements was, however, harmless.
We therefore affirm Moreno’s conviction.

I.

  The Morenos had the misfortune to conduct a
suspicious transaction within view of members of
a U.S. Customs Service task force that happened
to be conducting an unrelated investigation. On
July 9, 1998, six agents were conducting
surveillance on Chicago’s northwest side when one
of them noticed the Morenos’ Chevrolet pull into
the parking lot of a nearby 7-Eleven convenience
store. Evaristo Moreno was driving, Fany Moreno
was in the front passenger seat, and their nine
year-old son was in the back seat. Ms. Moreno got
out of the car, stood in front of the 7-Eleven
for a moment, returned to the auto and spoke with
Mr. Moreno, and then resumed her station in front
of the store. A Jeep subsequently pulled into the
parking lot, an unidentified man stepped from it,
and he handed Moreno a small white plastic bag.
She accepted the bag, quickly returned to the
Chevrolet, and the Morenos left the lot.

  Their suspicions aroused, several members of the
task force followed the Morenos and eventually
pulled their car over after Evaristo Moreno drove
through a red light. As Mr. Moreno got out of the
car and approached Agent Vince Scaccianoce,
Moreno herself exited the vehicle with two bags
in hand, one of them the small bag that she had
collected at the 7-Eleven. The agent asked her to
return to the car and she complied. Subsequently,
after Mr. Moreno had consented to a search of the
car, Moreno again left the vehicle, again with
the two bags in hand. Agent Daniel Morro
instructed her to leave the bags in the car. When
he asked her what was in the smaller bag, Moreno
claimed not to know. When Morro looked into the
bag, he discovered a Nike shoe box containing a
large amount of cash--some $69,000. (Inside of
the larger bag were recently purchased child’s
clothing and a pillow.)/2

  As it turned out, the agents had stopped the
Morenos within a block of their home. After the
car was searched, Agent Scaccianoce solicited Mr.
Moreno’s consent to search the home and he gave
it. However, as he and some of the agents began
to walk toward the house, Ms. Moreno yelled
something in Spanish to her partner that none of
the agents managed to catch. Mr. Moreno promptly
withdrew his consent to a search of the house,
and the agents were forced to obtain a warrant.

  Warrant in hand, the agents returned later that
evening and searched the house. In a master
bedroom closet, which contained clothing and
shoes for both men and women, they found nearly
a kilogram of cocaine inside of a purse, along
with the stubs of three movie tickets (two for
adults and one for a child) and a variety of
other documents (year-old receipts and a lottery
ticket). In the same closet, some twenty-one
baggies containing small amounts of cocaine were
discovered in a stuffed-animal knapsack and a
number of shoe boxes. Some $27,000 in U.S.
currency was also found in a fanny pack. The
bills in that pack, like the much larger amount
found in the bag that Moreno accepted at the 7-
Eleven, were bundled together in a manner and
comprised of denominations typical of drug
trafficking funds. A dresser in the master
bedroom, which, like the closet, contained
masculine and feminine clothing as well as a
utility bill addressed to Fany Moreno and several
other pieces of correspondence, yielded more
cocaine (packaged in glycine and plastic baggies,
some stashed in film canisters, others in socks),
two digital gram scales, and inositol, a baby
laxative that people in the drug trade often use
as a cutting agent. All told, the search yielded
1,690.5 grams of cocaine. In addition, the agents
discovered just over 260 grams of heroin in a
living room closet, secreted within a box that
once contained an Asteroid Air Blasters toy. The
total retail value of the drugs found in the home
exceeded $200,000.

  Although Evaristo Moreno pleaded guilty to the
two-count indictment, Fany Moreno, whom no
witness had ever seen purchase or sell narcotics,
opted for a trial. Her defense was that she was
unaware of her partner’s narcotics trafficking
and, at most, was an unwitting accomplice to it.
To meet that defense, the government was
permitted, over Moreno’s objection, to elicit
testimony from several agents that Evaristo
Moreno had at first consented to a search of
their home and then, after the defendant yelled
something in Spanish to him, had withdrawn his
consent. E.g., Tr. 76, 95-96, 186-87. Although no
one (other than Fany Moreno and Evaristo Moreno)
knows what she yelled to him, in the government’s
view one may reasonably infer that she in some
way urged him not to permit the search; that
inference reasonably suggests in turn that Moreno
knew about the narcotics in their house. The
government pursued this theme forcefully in its
closing arguments:

At this point, what happens? Fanny [sic] Moreno
begins to yell. She begins to yell loudly in
Spanish. Do we know what she says? Emphatically
we do not. No one there who was able to hear her
knows what she said.

But interestingly, what happens next, ladies and
gentlem[e]n? Right after Fanny [sic] Moreno
begins to yell at her husband, begins to yell at
Evaristo Moreno, who was about to let the agents
in the house, he turns around and says, "You
can’t come in. You have to get a warrant."[/3]

Again, is that consistent with someone with no
knowledge? Is that consistent with someone who
has nothing that she’s aware of that’s in the
house that she possessed, that she controls?
Absolutely not.

Tr. 244; see also Tr. 261-63.
II.

  Moreno’s appeal focuses on the admission of
testimony regarding Evaristo Moreno’s initial
consent to the search of their home and the
withdrawal of that consent upon the heels of her
yelled remark to him. She contends that
Evaristo’s out-of-court statements constitute
hearsay, so that it was improper for the
government to elicit his change of heart about
the search, in conjunction with her own shouted
comment to him, as proof of her knowledge that
the home contained narcotics.

  We agree with the government that Mr. Moreno’s
utterance of consent to the search, and his
subsequent retraction, amount to verbal acts, and
as such are not inadmissible hearsay. Like the
classic examples of verbal acts, offer and
acceptance, see Hydrite Chem. Co. v. Calumet
Lubricants Co., 47 F.3d 887, 892 (7th Cir. 1995),
statements that grant or withhold permission to
the authorities to conduct a search carry legal
significance independent of the assertive content
of the words used. See generally 4 Christopher B.
Mueller & Laird C. Kirkpatrick, Federal Evidence,
sec. 385 (2d ed. 1994); see also, e.g., United
States v. Rojas, 53 F.3d 1212, 1216 (11th Cir.)
(consent to exercise of jurisdiction over
vessel), cert. denied, 516 U.S. 976, 116 S. Ct.
478 (1995); State v. Welker, 536 So.2d 1017,
1019-20 (Fla. 1988) (consent to record telephone
conversation); State v. Gillespie, 569 P.2d 1174,
1175 (Wash. App. 1977) (consent to search
residence). In appropriate circumstances,
therefore, the government may elicit the giving
or refusal of one’s consent to a search without
running afoul of the proscription against
hearsay.

  That said, we are skeptical that Mr. Moreno’s
decision to grant or withhold his consent to the
search had much, if any, probative value vis a
vis Ms. Moreno’s culpable knowledge of the drugs
in the house. The government’s theory as to the
relevance of Mr. Moreno’s statements depends on
the assumption that Fany Moreno instructed or
encouraged Evaristo not to let the agents search
the house. Certainly it is possible that she did,
but it is also possible that she said something
entirely different--"If you’ve committed a crime,
I’ll never forgive you!", for example. Even if
Moreno did say something that encouraged her
partner to reconsider his decision to permit the
search, the remark did not necessarily reflect
guilt on her part. Perhaps she simply reminded
him that he had a right to insist on a warrant,
as any competent attorney might have done. See
United States v. Prescott, 581 F.2d 1343, 1352
(9th Cir. 1978) ("Because the right to refuse
entry when the officer does not have a warrant is
equally available to the innocent and the guilty,
just as is the right to remain silent, the
refusal is as "ambiguous" as the silence was held
to be in United States v. Hale, 1975, 422 U.S.
171, 176-77, 95 S. Ct. 2133, 45 L. Ed. 99.") The
truth is, we can only speculate as to the nature
of Ms. Moreno’s remark, and that being the case,
the fact that Mr. Moreno withdrew his consent to
the search immediately after she shouted that
remark was of little probative value.

  Furthermore, even if we indulge the inference
that Moreno urged Evaristo not to allow the
search, admitting this evidence as a means of
establishing Moreno’s guilt may have run afoul of
her constitutional rights. Doyle v. Ohio, 426
U.S. 610, 96 S. Ct. 2240 (1976), and Griffin v.
California, 380 U.S. 609, 85 S. Ct. 1229 (1965),
forbid the government from pointing to a
defendant’s post-arrest silence, or to his
invocation of his Fifth Amendment privilege not
to testify, as evidence of his guilt. In reliance
on Griffin and Doyle, other courts have either
held or suggested that the government may not
cite a defendant’s refusal to consent to a search
of his home as evidence that he knew the search
would produce incriminating evidence. See United
States v. Dozal, 173 F.3d 787, 794 (10th Cir.
1999); United States v. Thame, 846 F.2d 200, 206-
07 (3d Cir.), cert. denied, 488 U.S. 928, 109 S.
Ct. 314 (1988); Prescott, 581 F.2d at 1350-52;
United States v. Taxe, 540 F.2d 961, 969 (9th Cir.
1976), cert. denied, 429 U.S. 1040, 97 S. Ct. 737
(1977); United States v. Turner, 39 M.J. 259, 262
(C.M.A. 1994); State v. Palenkas, 933 P.2d 1269
(Ariz. App. 1996), cert. denied, 521 U.S. 1120,
117 S. Ct. 2513 (1997); State v. Jennings, 430
S.E.2d 188, 200 (N.C.), cert. denied, 510 U.S.
1028, 114 S. Ct. 644 (1993); Simmons v. State,
419 S.E.2d 225, 226-27 (S.C. 1992); see also
United States v. Hyppolite, 65 F.3d 1151, 1157
(4th Cir. 1995) (mere assertion of constitutional
right to refuse consent to search does not supply
probable cause to search), cert. denied, 517 U.S.
1162, 116 S. Ct. 1558 (1996); United States v.
Taxacher, 902 F.2d 867, 873 n.6 (11th Cir. 1990)
(same), cert. denied, 499 U.S. 919, 111 S. Ct.
1307 (1991); Snow v. State, 578 A.2d 816, 825
(Md. App. 1990) (driver’s refusal to consent to
search of automobile did not give rise to
reasonable suspicion that vehicle contained
narcotics); cf. United States v. McNatt, 931 F.2d
251, 257-58 (4th Cir. 1991) (evidence of
defendant’s refusal to consent to search was
admissible to respond to defendant’s claim that
police planted evidence), cert. denied, 502 U.S.
1035, 112 S. Ct. 879 (1992). The Fourth Amendment
entitled the Morenos to withhold their consent to
the search, and so to have held up Mr. Moreno’s
invocation of that right, purportedly at his
partner’s urging, as evidence that Ms. Moreno
knew the house contained contraband, may have
been inconsistent with due process.

  We are satisfied, however, that any error in
the admission of this evidence was harmless. The
agents had witnessed Moreno accept a bag filled
with $69,000 in cash in front of the 7-Eleven,
while Evaristo waited nearby in the car. When the
agents subsequently stopped the Morenos, Ms.
Moreno twice attempted to take that bag with her
when she left the car, a circumstance that
suggests she had some idea of what the bag
contained. Moreover, when the Moreno home was
searched, drugs and drug paraphernalia were found
throughout the house, in places where Ms. Moreno
almost certainly would have seen them: more than
a kilogram of cocaine was found in the master
bedroom closet, which contained both men’s and
women’s clothing, and much of the cocaine was
found in a purse along with the movie ticket
stubs and various receipts. Additional cocaine,
together with two digital gram scales and the
inositol, was discovered in the master bedroom
dresser, along with a bill addressed to Fany
Moreno. Finally, more than 260 grams of heroin
were found within a toy box in a living room
closet. Under these circumstances, it strains
credulity to argue, as Moreno does, that she was
at most an unwitting participant in Evaristo
Moreno’s drug trafficking.

III.

  Although we agree with Moreno that the
testimony concerning her significant other’s
decision to withdraw his consent to a search of
their home probably should not have been
admitted, we find any error to have been harmless
in this case. We therefore AFFIRM her conviction.



/1 Although Evaristo and Fany Moreno had lived
together for eleven years, and were referred to
as husband and wife at trial, they were not
married; they simply happened to have the same
last name.

/2 No issue is raised as to the scope of the
automobile search to which Mr. Moreno consented.
See Florida v. Jimeno, 500 U.S. 248, 111 S. Ct.
1801 (1991).

/3 As Moreno points out, the record does not
actually establish precisely what Mr. Moreno said
when he withdrew his consent. The agents simply
testified that he withdrew his consent. See Tr.
96, 187.
