
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2255                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JUAN SEPULVEDA,                                Defendant, Appellant.                                 ____________________        No. 95-2256                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JUAN VELASQUEZ,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            William  T. Murphy,  by Appointment  of the  Court, for  appellant            __________________        Juan Sepulveda.            Stephen J. Weymouth,  by Appointment  of the Court, for  appellant            ___________________        Juan Velasquez.            Sheldon Whitehouse,  United States Attorney,  with whom  Stephanie            __________________                                       _________        S.  Browne, Assistant  United States  Attorney, was  on brief  for the        __________        United States.                                 ____________________                                  December 30, 1996                                 ____________________                 BOUDIN, Circuit Judge.  On February  14, 1995, acting on                         _____________            an informant's tip that two Hispanic males were selling crack            through a side window, police detectives in Providence, Rhode            Island staked out the  designated first-floor apartment.  The            officers  saw an unusual number of visitors going to and from            the  side of  the  building, remaining  only briefly.   After            watching for an hour,  an undercover detective approached one            side window, was directed to  a different side window  partly            covered  with plywood  and purchased  two "rocks"  of cocaine            base ("crack"), paying with two marked $20 bills.                 The police then forcibly entered the apartment and found            four men inside, including appellants Juan Sepulveda and Juan            Velasquez.   The apartment was unfurnished, with  no signs of            personal drug use by the occupants.  The undercover detective            identified  Velasquez  as  the  seller.    Sepulveda's  pants            pockets  contained  plastic bags  of  powder  cocaine and  of            crack, and a  bundle of  cash (including the  two marked  $20            bills  from the earlier purchase).   The police  also found a            sawed-off rifle which proved to be unregistered.                 Both Velasquez and Sepulveda were charged with a panoply            of drug and weapons offenses.  The case proceeded to trial in            June 1995 under  a redacted five-count  indictment:  count  I            charged the defendants with  conspiracy to distribute, and to            possess  with  intent  to  distribute  crack.    21 U.S.C.               841(a)(1).    Counts   II  and  III,   respectively,  alleged                                         -2-                                         -2-            distribution of crack and possession of  crack with intent to            distribute.   Id.   Count  IV charged  the  use of  a firearm                          ___            during  a drug  trafficking crime,  18 U.S.C.  924(c)(1), and            count V  alleged  possession  of  an  unregistered  sawed-off            rifle.  26 U.S.C.    5841,  5861(d), 5871.  After a  four-day            trial,  the jury  found  both defendants  guilty on  all five            counts.                 In October 1995, the district  judge sentenced Sepulveda            to 70 months' imprisonment on  counts I, II, III, and V,  and            Velasquez to 78 months on those same counts.  Both defendants            were  also  given a  mandatory  consecutive 10-year  sentence            under count  IV; but  the government  and the  defendants now            stipulate  that the  conviction and  sentence under  count IV            have been undermined by  Bailey v. United States, 116  S. Ct.                                     ______    _____________            501 (1995).  The  appeals are directed to the  remaining four            counts.                                          I.                 We begin  with the more substantial of the challenges to            the convictions.  First, Sepulveda asserts that the search of            his person by police officers immediately prior to his arrest            was unlawful  because it  was executed  without a  warrant or            probable cause and exceeded the lawful scope of a  protective            frisk  for weapons.    Accordingly, Sepulveda  says that  the            drugs and  cash discovered in  his pockets  should have  been            suppressed, and that  the remaining evidence is not enough to                                         -3-                                         -3-            support his conviction.  The government argues that Sepulveda            waived this issue by not raising it in the district court.                  At a suppression hearing on  June 16, 1995, the district            court ruled  that the apartment search was  based on probable            cause and that exigent  circumstances--namely, the risk  that            contraband  might  be   destroyed--justified  entry   without            awaiting a  warrant.   Whether Sepulveda  separately disputed            the search  of  his person,  and whether  the district  court            intended its reasoning to  cover this search as well,  is not            entirely clear.  Since the facts are undisputed and we review            probable cause  decisions de novo, Ornelas  v. United States,                                      __ ____  _______     _____________            116 S. Ct. 1657, 1663 (1996), the easiest course is for us to            decide ourselves whether the  search of Sepulveda himself was            valid.                 The  police had  ample  cause to  arrest Velasquez,  but            probable cause must exist for each person arrested, and "mere            propinquity to  others  independently suspected  of  criminal            activity does  not, without more, give rise to probable cause            to search that person."   Ybarra v. Illinois, 444 U.S. 85, 91                                      ______    ________            (1979).  The government does not argue that a mere protective            frisk of Sepulveda would  have produced the money as  well as            the  drugs,  so the  question  is  whether the  circumstances            provided probable cause to arrest--and therefore  to search--            Sepulveda.   United States  v. Martinez-Molina, 64  F.3d 179,                         _____________     _______________            726 (1st Cir. 1995).                                         -4-                                         -4-                 The apartment  in this  case was unfurnished  and partly            boarded up.   There is no indication that it was used for any            purpose other than distribution of drugs.  The numerous walk-            up sales the police had observed confirmed that the apartment            was being  used for drug distribution  and strongly suggested            that  everyone in the apartment  knew of this  activity.  See                                                                      ___            Martinez-Molina, 64 F.3d at 729.  It is only a  short step to            _______________            suppose that those present  in the otherwise vacant apartment            were probably drug dealers or purchasers.                  The  D.C. Circuit  encountered  similar facts  in  United                                                                   ______            States v.  Holder,  990 F.2d  1327,  1329 (D.C.  Cir.  1993).            ______     ______            After  entering an  apartment  and finding  evidence of  drug            distribution,  the  police  arrested  the  individuals  found            inside.    The court  upheld the  arrest  of a  defendant who            claimed to be a bystander, saying that the open nature of the            drug sale activity in the apartment gave rise to a reasonable            inference that each occupant was involved in the drug trade--            either as an  accomplice in the drug sales  or as a customer.            Id. at 1329.              ___                 To  be  sure,  Sepulveda  might have  been  an  innocent            visitor.   But probable cause  requires only that  the police            have  "reasonable  grounds  to  believe" that  Sepulveda  had            committed the crime.   See United States v. Melvin,  596 F.2d                                   ___ _____________    ______            492, 495 (1st Cir. 1979).  The facts of this case persuade us            that  there was  ample reason  for the  police to  think that                                         -5-                                         -5-            Sepulveda  was  engaged in  a felony.   Given  probable cause            prior  to the search, it is irrelevant that the formal arrest            may have followed the search.  Rawlings v. Kentucky, 448 U.S.                                           ________    ________            98, 111 & n.6 (1980).                       Second, Velasquez argues that  the district court  erred            in  the  jury  instructions  by  failing  to  tell the  jury,            according to his  brief on appeal, "that it  could not base a            conviction of possession  with intent  to distribute  cocaine            base  under count  III on  the same  conduct that  formed the            basis for the distribution count (Count II)."  The government            says  (correctly) that  Velasquez did  little to  explain his            "concern" to  the district court,  making no request  for any            specific curative language.  The objection was as follows.                     I have a concern as it deals with the charge of                 possession  with intent  to sell--distribute.   The                 Court  knows,  based on  the  evidence  that it  is                 alleged  that there  was a  quantity  of contraband                 allegedly   in  Mr.  Sepulveda's   pocket.    I  am                 concerned just  based on the charge  as it pertains                 to the definition that  the Court instructed, as it                 pertains   to   the  possession   with   intent  to                 distribute, that the jury  may in fact confuse that                 with the delivery.  In other words, your Honor, I'm                 concerned that by virtue of the fact that we have a                 delivery  charge  and  we  have  a possession  with                 intent to distribute charge, I'm concerned that the                 jury may  confuse them  or think  that they are  in                 fact one and the same.                 A request for  specific curative language may  sometimes            be  needed to convey the substance of a requested addition or            correction  to the  charge,  and the  absence  of a  specific            request may prove fatal.  E.g.,  Parker v. Nashua, 76 F.3d 9,                                      ____   ______    ______                                         -6-                                         -6-            12 (1st Cir. 1996).  Still, one can imagine  cases where some            other formula  might, in  context, convey all  of the  needed            information   (e.g.,  "I   object   to  the   definition   of                           ____            `possession' because . . . .").  Here, based on  the district            judge's response,  we think it  is unclear that  the district            judge understood the objection to be the "same conduct" claim            that Velasquez is now pressing on appeal.                 In any event, to the extent we  understand the objection            now,  it appears  to us  to be  ill-founded.   Explaining why            requires  some  background.    Under  Blockburger  v.  United                                                  ___________      ______            States,  284 U.S. 299 (1932), a defendant can be convicted of            ______            two differently defined  offenses, based on the  same core of            facts, so long as  each offense requires an element  that the            other does  not.  Id.  at 304.   The offense  of distribution                              ___            obviously does require an element not required for  the crime            of possession with intent, namely, the act of distribution.                 It   is  possible--albeit   unusual--to  be   guilty  of            distribution of a drug without also possessing it with intent            to distribute.   Someone who participates in a drug transfer-            -e.g.,  as  a  broker  or  armed  guard--can  be  liable  for             ____            distribution without  ever possessing the drugs.   See, e.g.,                                                               ___  ____            United States v.  Brunty, 701  F.2d 1375, 1381  & n.16  (11th            _____________     ______            Cir.  1983).   While  "possession"  is  certainly helpful  in            proving  distribution,  it  is  technically  not  a necessary            element.  United  States v.  Tejada, 886 F.2d  483, 490  (1st                      ______________     ______                                         -7-                                         -7-            Cir.  1989).   Compare  2 Sand  et  al., Modern  Federal Jury                           _______          __  __   ____________________            Instructions, 56-24 to 56-26, 56-4 (1992).            ____________                 But satisfying Blockburger has not wholly satisfied  the                                ___________            circuit  courts.    Where  the  evidence  shows  only  that a            defendant handed  over a  packet of  drugs, some  courts have            balked  at  the  idea  that  Congress  intended  to  allow  a            conviction   both  for   possession  with   intent  and   for            distribution.   E.g.,  United  States v.  Meredith, 824  F.2d                            ____   ______________     ________            1418,  1426 (4th Cir. 1987).   Other circuits  have said that            conviction on both counts is permitted,  but that a defendant            may only  be sentenced on one.   See, e.g., United  States v.                                             ___  ____  ______________            Palafox, 764 F.2d 558, 562 (9th Cir. 1985).            _______                 By contrast,  this court,  following the  Fifth Circuit,            United  States v.  Zabaneh,  837 F.2d  1249,  1257 (5th  Cir.            ______________     _______            1988),  has said  that  "the offenses  merge  only where  the            distribution itself  is the  sole evidence of  possession, or            where  possession is  shown to  exist only  at the  moment of            distribution," United  States v. Rodriguez-Cardona,  924 F.2d                           ______________    _________________            1148, 1159 (1st Cir.  1991), and we have also made clear that            a defendant could be convicted of both offenses, with respect            to  the  same  drug, so  long  as  there  was proof  that  he                     ____            possessed the drug (with intent to distribute) at some  point            earlier than  the distribution itself.   Tejada, 886  F.2d at                                                     ______            490.                                         -8-                                         -8-                 It is doubtful that the game (reflected in these various            distinctions drawn by the circuits) is worth the candle where            both  offenses  are prosecuted  at the  same  time.   In most            configurations,  the guidelines will assure that the sentence            is the  same for  one or  both, save  for  the $50  mandatory            assessment.   U.S.S.G.    3D1.1,  3D1.3 (Nov. 1994).   And so            far as we can tell, only the $50 assessment is at issue here.            But based on this stake alone, Rutledge v. United States, 116                                           ________    _____________            S. Ct. 1241, 1247 (1996), prevents us from treating the issue            as moot.                 In any  event, the disagreement between  the circuits is            irrelevant  here, as  is the  narrower concern  that prompted            this court  in Tejada  and Rodriguez-Cardona.   Velasquez was                           ______      _________________            plainly  shown to  have distributed  two rocks  that he  sold            through the window  to the  detective.  It  is scarcely  less            clear that  the  jury regarded  Velasquez  as  constructively            possessing with intent to distribute quite separate  packages            of crack that Sepulveda  had in his pocket.   Thus, Velasquez            was guilty of both crimes based upon different drugs.                   The constructive  possession  finding is  inference  but            almost inescapable.  By  convicting Sepulveda of distribution            and  finding both  defendants liable  of possessing  the same            gun, the jury made clear its view that both men were partners            in the same criminal enterprise, a view borne out not only by            circumstances but  by Sepulveda's  possession  of the  marked                                         -9-                                         -9-            bills handed to Velasquez through the window.  On this basis,            it follows that  Velasquez was also liable on  the possession            charge for the crack carried by Sepulveda.                                         II.                 Velasquez  challenges his  sentence on  several grounds.            The most important ground concerns the treatment of  the cash            found in Sepulveda's pockets;  the district court treated the            entire  amount as proceeds from the sale of crack.  Velasquez            argues that the cash  should not have been converted  into an            equivalent quantity of drugs at all and, if converted, should            have been treated as proceeds of powder cocaine.                   When the police searched  Sepulveda, they discovered  in            his  pockets $335  in cash,  five plastic  bags of  crack and            three  plastic bags of powder cocaine.  The cash included the            two marked $20 bills that the detective had exchanged for two            "rocks"  of crack, leaving $295.   The probation officer said            that this remaining amount likely represented the proceeds of            prior crack sales but, to give "the benefit of the doubt"  to            the defendants,  recommended that the cash  be converted into            an equivalent of powder cocaine rather than crack.                 The government objected vigorously.   It argued that the            convictions were  for crack,  that powder cocaine  counts had            been dropped (because the amount of powder did not warrant an            inference of  possession with intent),  and that "all  of the            facts"  pointed  to crack  distribution  and  none to  powder                                         -10-                                         -10-            cocaine.    The  probation  officer replied  that  there  was            "perhaps[]  a  greater  likelihood  that  the   seized  money            represented the proceeds from  prior sales of crack cocaine";            but  the presence  of  three  bags  of powder  persuaded  the            probation officer to stand by her earlier recommendation.                  At the sentencing, the government pressed its objection,            arguing that the  $295 should be  translated into crack,  and            the  district court sided with  the government.   As crack is            punished much more seriously  than cocaine powder, see United                                                               ___ ______            States v. Armstrong, 116  S. Ct. 1480, 1492  (1996) (Stevens,            ______    _________            J., dissenting), the  effect of the court's ruling  (based on            calculations that we  need not describe because  they are not            disputed)  was to increase the base offense level on the drug            counts  from 18  to 26.   The  district court  then sentenced            Velasquez to the minimum permitted by the guideline range for            level 26 and his criminal history category of III, namely, 78            months.                 There is nothing to  Velasquez' primary objection in the            district court, renewed on  appeal, that the $295  should not            be  converted into  drugs at  all.   A  reasonable factfinder            could  conclude  that  it  was  more  likely  than  not  that            Sepulveda and  Velasquez were  partners in a  drug operation,            Sepulveda   holding  the  drugs   and  money   and  Velasquez            completing  the transactions  at  the side  window.   The co-            mingling of  the $40  in marked  bills, and  the lack  of any                                         -11-                                         -11-            other  obvious  source for  the $295,  made it  reasonable to            attribute  the money to drug dealing properly included in the            sentence.  See United States v. Gerante, 891 F.2d 364, 368-69                       ___ _____________    _______            (1st Cir. 1989).                 The more  difficult question is whether  the $295 should            all be treated as proceeds of crack transactions or should be            treated  as powder, which Velasquez  now urges as a fall-back            position.   The government  says that Velasquez  did not urge            this  alternative in  the district  court where,  needless to            say, his main argument was against treating the money as drug            proceeds at all.   But the alternative of treating  the money            as powder sales  was presented by the  presentence report and            squarely rejected by the district judge in favor of  treating            the money as proceeds from crack.                 In  arguing   for  the  probation   officer's  solution,            Velasquez invokes our own admonition that courts must "err on            the  side of caution" in choosing among a number of plausible            estimates of drug quantity.  United States v. Jackson, 3 F.3d                                         _____________    _______            506,  510 (1st Cir. 1993);  United States v.  Sklar, 920 F.2d                                        _____________     _____            107,  113 (1st Cir.  1990).   But this  "caution" has  a more            precise office  that is  best understood by  quoting directly            from the opinion  from which Jackson  and Sklar borrowed  the                                         _______      _____            quoted language:                 If  the  exact  amount  cannot  be  determined,  an                 estimate   will   suffice,   but   here    also   a                 preponderance  of the  evidence  must  support  the                 estimate.   Thus when choosing between  a number of                                         -12-                                         -12-                 plausible estimates of drug quantity, none of which                                                       _____________                 is  more likely  than not  the correct  quantity, a                 _________________________________________________                 court must err on the side of caution.            United  States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)            ______________    ______            (emphasis added).                 Walton's  caution  would  apply  if  (for  example)  the                 ______            district court had found that the $295 might  represent sales            of crack or, to an equal likelihood, might represent sales of            both crack and  powder.   But here the  district court  found            that  the money all represented  crack sales.   The court was            obviously  making  a submerged  judgment  about probabilities            (only the defendants  know for sure); but it  plainly thought            that the finding it made was more likely than not to be true.                 The standard  of review on this issue  is "clear error."            Gerante,  891  F.2d  at 368.    Based  on  the facts  already            _______            recited,  we think there is  no way to  describe the district            court's determination as  irrational, highly speculative,  or            without a  basis in the evidence.  The money was found in the            hands  of persons who had been identified in advance as crack            dealers, had crack in their possession and had just completed            a sale  to the police of crack.  There was no direct evidence            of powder sales at all.                 The  district  court   could  certainly  have  taken   a            different  view of the matter.  The defendants did have three            bags of powder cocaine, suggesting that they might be in both            lines  of business.  And, while the government pointed to the                                         -13-                                         -13-            smallness of the amount  of powder, conflicting inferences of            this  kind are  matters to be  weighed by the  trier of fact.            But that  is precisely the  point:   it was for  the district            court  to make these judgments and absent a clear mistake, we            have no warrant to intervene.                                         III.                      The  defendants  make  several  other  claims  that            require  no detailed  discussion.   Velasquez  says that  the            evidence was  inadequate to support convictions on any of the            remaining counts and  Sepulveda makes  the same  claim as  to            count  V.   The facts  already recounted  make it  plain that            there was  ample evidence to  convict both defendants  on the            drug  counts, and  we are  not going  to  waste time  on this            issue.                 The evidence as to the weapon, which underpinned the two            gun  counts, has not been  recounted but was also sufficient.            Inside the  apartment,  the police  found an  opening in  the            ceiling through which  the butt of a gun could  be seen.  The            gun  proved to be a  fully operational sawed-off  rifle.  The            location  was within an arm's length of the barricaded window            through  which the sale had  been made to  the detective, and            the butt could be reached easily by someone of average height            standing inside the apartment at the window.                 Given  the  circumstances--the  vacant   apartment,  the            actual sale,  the additional  drugs  carried by  Sepulveda--a                                         -14-                                         -14-            reasonable jury could easily infer that the apartment was the            base used by  Sepulveda and Velasquez to retail  their drugs.            From the placement of the weapon, it could also be reasonably            inferred that  the defendants kept it  there, well positioned            and  available,  for potential  use  in  overawing an  unruly            customer or confronting a rival dealer.  In short, the weapon            could  be  attributed to  the  defendants  and, coupled  with            evidence that the rifle was unregistered, this  was enough to            convict.  See U.S.C.    5841, 5861(d), and 5871.                          ___                 The  same   evidence  was  also  used   to  convict  the            defendants  on  the "use  or  carry"  charge  under U.S.C.               924(c)(1).   As to this  count, the government's  theory, and            the jury instructions, were based on our pre-Bailey decisions                                                         ______            which  defined "use"  more broadly  than is  now permissible.            The government and  defendants have  already stipulated  that            the  convictions of  both defendants  must be  reversed under            Bailey,  together  with  the  mandatory  consecutive sentence            ______            imposed on this count.  We agree.                 The convictions and sentences on counts  I-III and V are            affirmed,  the  convictions  and  sentences on  count  IV  is            ________            reversed, and  the matter is  remanded to the  district court            ________                      ________            for proceedings consistent with this decision.                 It is so ordered.                 ________________                                         -15-                                         -15-
