     10-161-cr
     United States v. Rico Beltran
                                      UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT

                                                SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1. WHEN
     CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
     “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.


 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
 3   York, on the 2 nd day of February, two thousand eleven.
 4
 5   PRESENT:              GUIDO CALABRESI,
 6                         GERARD E. LYNCH,
 7                                       Circuit Judges,
 8                         J. GARVAN MURTHA,
 9                                       District Judge.*
10
11   ------------------------------------------------------------------
12
13   UNITED STATES OF AMERICA,
14                           Appellee,
15
16                                   v.                                             No. 10-161-cr
17
18   SILVESTRE RICO BELTRAN,
19                                               Defendant-Appellant.
20
21   --------------------------------------------------------------------
22
23   FOR APPELLANT:                       Daniel Nobel, New York, New York.
24
25   FOR APPELLEE:                        Richard C. Tarlowe, Assistant United States Attorney
26                                        (Katherine Polk Failla, on the brief), for Preet Bharara, United
27                                        States Attorney for the Southern District of New York, New
28                                        York, New York.
29


                *
           Honorable J. Garvan Murtha of the United States District Court for the District of
     Vermont, sitting by designation.
 1          Appeal from the United States District Court for the Southern District of New

 2   York (Richard J. Sullivan, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 4   AND DECREED that the judgment of the district court is AFFIRMED.

 5          Silvestre Rico Beltran appeals from his conviction in the Southern District of New

 6   York (Richard J. Sullivan, J.), after a one-week jury trial, of distributing and possessing

 7   with intent to distribute, and conspiring to distribute and possess with the intent to

 8   distribute, five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 812,

 9   841(a)(1), 841(b)(1)(A), and 846. Rico Beltran argues that the district court erred by: (1)

10   denying his motion to suppress physical evidence seized from his apartment, and (2)

11   declining to give a requested jury instruction stating that ownership and control of a

12   vehicle, alone, does not establish constructive possession of drugs hidden in the vehicle.

13   We assume the parties’ familiarity with the relevant facts and procedural history of this

14   case, and the issues presented on this appeal.

15   I. Suppression Motion

16          Before trial, Rico Beltran unsuccessfully moved to suppress evidence seized

17   during a search of his residence. On appeal, he argues that the district court erred in

18   finding that his co-defendant, Carlos Peña Ontiveros, voluntarily consented to the search.

19          Whether authorities obtained voluntary consent to conduct a search “is a question

20   of fact to be determined from the totality of all the circumstances.” Schneckloth v.

21   Bustamonte, 412 U.S. 218, 227 (1973). “We will not reverse a finding of voluntary


                                                   2
 1   consent except for clear error.” United States v. Snype, 441 F.3d 119, 131 (2d Cir. 2006).

 2          The court held an evidentiary hearing on the suppression motion, hearing

 3   testimony from the agents who conducted the search, and considering affidavits from

 4   Peña Ontiveros and Rico Beltran. The court credited the agents’ testimony as “wholly

 5   credible and consistent,” and found that it established the following: Agents knocked on

 6   the front door, the back door and windows of the residence at approximately 3:00 a.m. for

 7   twenty minutes, until Peña Ontiveros opened the front door. Special Agent Mildred

 8   Marin asked Peña Ontiveros if he spoke English, and he said he did. Marin asked

 9   whether the agents could enter the residence, and he said “yes.” The agents entered the

10   residence and conducted a protective sweep. Marin then asked Peña Ontiveros for

11   consent to search the apartment, and Peña Ontiveros said “yes, you can.” The agents

12   conducted the search at issue. One agent found approximately two kilograms of cocaine

13   and $98,000 in cash behind a vent in a closet. Elsewhere in the apartment, agents found

14   various items commonly used in connection with drug trafficking, including a heat-

15   sealing machine, a digital scale, and a money-counting machine.

16          The district court rejected as incredible the defendants’ version of events, which

17   asserted that the defendants repeatedly denied the agents’ requests to enter the residence

18   as the agents brandished weapons, yelled, and threatened them. The defendants alleged

19   that the agents eventually tricked them into letting the agents into the residence by asking

20   to use the bathroom, a scenario that the district court stated “strains credulity.” The court

21   explicitly credited the agents’ testimony over the defendants’ conflicting assertions.


                                                   3
 1          The court further found that Peña Ontiveros was a middle-aged man who speaks

 2   English, who faced no questioning or physical punishment prior to giving consent, who

 3   was not in custody at the time of consent, and who remained calm during his interactions

 4   with the agents. On the totality of the circumstances, the district court found that the

 5   consent Peña Ontiveros gave the agents was voluntary.

 6          We cannot say that the district court committed any error, let alone clear error, in

 7   so holding. There is no basis for overturning the court’s factual findings, which were

 8   based on its assessment of witness credibility and to which we therefore owe particular

 9   deference. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985). On

10   the facts found by the district court, Rico Beltran has made no showing that Peña

11   Ontiveros’s consent was involuntary. We therefore see no reason to reverse the district

12   court’s holding that the consent was voluntary.

13          Rico Beltran argues that even if Peña Ontiveros voluntarily consented to a search,

14   the agents conducting the search exceeded his consent because he consented only to a

15   minimal sweep for protective purposes. “The standard for measuring the scope of a

16   suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness –

17   what would the typical reasonable person have understood by the exchange between the

18   officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991). Given that Peña

19   Ontiveros gave a general, open-ended consent to search the apartment, and that the agents

20   already had conducted a protective sweep of the apartment before the request was made,

21   we see no error in the court’s finding that the search that was conducted was within the


                                                   4
 1   scope of Peña Ontiveros’s consent.

 2          Rico Beltran also argues (for the first time on appeal) that the district court failed

 3   to consider his allegation that immediately prior to the search the police engaged in an

 4   unconstitutional canine sniff of the bed of a truck he was driving. However, the propriety

 5   of the canine sniff has no bearing on the voluntariness of the consent to search the

 6   residence, because Rico Beltran has made no showing that Peña Ontiveros knew about

 7   the canine sniff when he consented to the search or that the canine sniff had any

 8   consequence for the seizure of the evidence in question. Finally, Rico Beltran’s argument

 9   that the search was invalid because the agents lacked a warrant fails because consent

10   searches without a warrant are constitutionally valid. See Schneckloth, 412 U.S. at 222.

11   II. Jury Instruction

12          Agents also found drugs hidden in the area between the engine and the cab of the

13   truck. Prior to trial, he unsuccessfully sought an instruction specifically informing the

14   jury that ownership and control of a vehicle, alone, does not establish constructive

15   possession of drugs hidden in the vehicle. He now argues that the district court erred by

16   declining to provide that instruction.

17          We review a jury instruction de novo, reversing only where “viewing the charge as

18   a whole, there was prejudicial error.” See United States v. Aina-Marshall, 336 F.3d 167,

19   170 (2d Cir. 2003). A defendant generally “cannot dictate the precise language of the

20   charge,” United States v. Han, 230 F.3d 560, 565 (2d Cir. 2000), and a defendant who

21   challenges the district court’s refusal to deliver a requested instruction bears a “heavy


                                                   5
 1   burden” of showing not only that his proposed charge accurately represents the law, but

 2   also that the charge actually given, without his requested instruction, prejudiced him.

 3   United States v. Feliciano, 223 F.3d 102, 116 (2d Cir. 2000).

 4          Rico Beltran proposed the following language concerning constructive possession,

 5   based on United States v. Pennington, 20 F.3d 593 (5th Cir. 1994):

 6                 The government may not rely upon a defendant’s ownership
 7                 and control of a vehicle to prove the defendant knew that he
 8                 possessed a controlled substance. While these are factors you
 9                 may consider, the government must prove that there is other
10                 evidence indicating the defendant’s guilty knowledge of a
11                 controlled substance hidden in the vehicle.
12
13   The court rejected this language as unnecessary, because the proposed charge did not

14   permit the jury to convict Rico Beltran based merely on his control of the truck.

15          The district court’s jury charge defined constructive possession as follows:

16                 A person need not have actual, physical possession – that is,
17                 physical custody of an object – to be in legal possession of it.
18                 If an individual has the ability to exercise substantial control
19                 over an object, even if he does not have the object in his
20                 physical custody, and that person has the intent to exercise
21                 such control, then he is in possession of that article.
22
23   The court also explained that in order for an act to be done knowingly and intentionally it

24   must be “the product of the defendant’s conscious objective, rather than the product of a

25   mistake or accident, or mere negligence or some other innocent reason.”

26          Finally, the court explained that “the government must prove beyond a reasonable

27   doubt that the defendant knew that he possessed narcotics and that his actions in

28   distributing the narcotics or possessing the narcotics with intent to distribute them were


                                                   6
 1   not due to carelessness, negligence, or mistake.”

 2          Rico Beltran has failed to show any error in the district court’s jury instruction, or

 3   prejudice because the court rejected his requested instruction. His requested instruction

 4   relies exclusively on an out-of-circuit case that required a similar constructive possession

 5   instruction where the sole defense had focused on constructive possession, and the district

 6   court’s jury charge had failed entirely to address the issue. See Pennington, 20 F.3d at

 7   600. The charge in the instant case, by contrast, fully advised the jury that in order to

 8   convict it had to find that Rico Beltran intended to exercise control over the drugs and

 9   knew that he possessed them. The government offered ample evidence from which the

10   jury could infer Rico Beltran’s knowledge and intent, and the government never argued

11   that knowledge or intent could be inferred merely from control over the truck.

12   Accordingly, the district court was well within its discretion in denying Rico Beltran’s

13   requested instruction.

14          For the foregoing reasons, the judgment of conviction is AFFIRMED.

15
16                                       FOR THE COURT:
17                                       Catherine O’Hagan Wolfe, Clerk of Court
18
19




                                                   7
