
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 95-1707                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JAIME CALDERON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Stahl, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Merin Chamberlain for appellant.            _________________            Jean B. Weld, Assistant United States Attorney, with whom Paul M.            ____________                                              _______        Gagnon, United States Attorney, was on brief, for the United States.        ______                                 ____________________                                  February 27, 1996                                 ____________________                      LYNCH, Circuit Judge.   Having been convicted  by a                      LYNCH, Circuit Judge.                             _____________            jury  of  carjacking  and   kidnapping,  Jaime  Calderon  was            sentenced  to 30  years of  imprisonment, and  five years  of            supervised  release  thereafter.    He  now   challenges  the            verdict,  saying  that  certain  evidence  should  have  been            suppressed and  he should  have been given  a hearing  on the            motion  to suppress,  that  the  superseding  indictment  was            invalid, that there was insufficient evidence to convict, and            that  the   jury's  conviction  of  him  on  two  counts  was            impermissibly inconsistent with  its acquittal of him  on two            other  counts.   There  being  more  than  ample evidence  to            convict  and  none   of  the  asserted  errors   having  been            committed, we affirm.   Indeed, this is  a case in which  the            police  search was  backed by  more than  the usual,  and the            careful  efforts  by  the  police  to  have  both   belt  and            suspenders  to support  the search  marks  more, rather  than            less,  concern  for adherence  to the  procedural protections            afforded defendants.            The Crime            _________                      On  the evidence, the jury was entitled to find the            following.  On August 31, 1994, Calderon heard that two young            men  were  selling  stereo  speakers  out of  a  van  in  his            neighborhood  in Nashua, New Hampshire.  Emboldened by access            to newly  stolen guns, Calderon  decided to take the  van and            the speakers.   Calderon, age 33, recruited  three teenagers,            including  his nephew  Jose  Hernandez,  to  help  him.  When                                         -3-                                          3            Hernandez  originally balked,  his uncle  excoriated him  and            called him a "chicken."  The other two recruits, Angel Rivera            and Julio Sanchez,  approached the two young  stereo salesmen            and asked  if they  would take them  in the  van to  a nearby            place  where  they  could  make  a  purchase  outside of  the            presence of police  officers who might  be looking for  them.            Once  inside the  van,  Rivera  and Sanchez  used  a gun  and            chokeholds to force the two salesmen  to the back of the van,            where  they were  made to  lie,  face down.   The  carjackers            struck one on the head  with a gun, causing profuse bleeding,            and told the  two men that if  they ever went to  the police,            they would be hunted down at their homes and killed.                        Rivera and Sanchez  picked up Calderon in  the van,            at his  apartment,  where  he  assumed the  role  of  driver.            Hernandez joined the  group as the van left the neighborhood.            Because the salesmen were face down, they  could not identify            Calderon,  but  were  aware  of  his  presence  in  the  van.            Calderon, who was in  charge, gave instructions that  "if the            kids get smart or something, . . . smack them around a little            just  to   calm  them   down."    The   van  was   driven  to            Massachusetts.   In Lowell, Calderon, a heroin addict, bought            heroin and  unloaded some  of the speakers.   The  two "kids"            were  held with  their faces  down for  three hours  and then            dumped into a wooded ditch in Billerica after one of them was            kicked in the head.                                         -4-                                          4                      Calderon's  defense at  trial  was  that he  simply            accepted a ride to Lowell, where he knew he could buy heroin,            and had no part in the carjacking or kidnapping.  A search of            the apartment  of Calderon's girlfriend,  however, turned  up            both the stolen speakers and Calderon.                      In  the  interim,  a  disquieted  Hernandez  turned            himself in to the Nashua police and voluntarily cooperated.            The Search            __________                      Based on information from  a confidential informant            that  at least  one pair  of the  stolen speakers was  at the            apartment  of  Carmen  Delgado,  Calderon's  girlfriend,  the            police went to Delgado's apartment at 11 p.m. on September 6,            1994.  At that time the police had an outstanding warrant for            Calderon's arrest for a failure  to appear on a motor vehicle            violation and Calderon  was a prime suspect in the kidnapping            and carjacking.    The officers  had reason  to believe  that            Calderon was living at the address.                      The police  knocked and, when  Delgado answered the            door, they asked  for permission to search.   An officer also            read  from  a consent  form.    Delgado  gave consent.    The            officers then asked  her to sign the consent  form, which she            did.   Two of  the stolen speakers  were in plain  sight.  In            addition, there was a man in the living room.  The man gave a            name, not the name "Jaime Calderon," and four different dates            of birth.  An officer stepped outside to look at a photograph                                         -5-                                          5            of Calderon, realized the man  was Calderon, and went back in            and arrested him.  Not knowing who or what was in the rest of            the apartment, the police searched the remainder.  They found            two other speakers, of the  type stolen, in a bedroom closet.            A few hours later, the officers  obtained a warrant to make a            detailed  search of the  apartment for weapons  and speakers.            Delgado gave the police inconsistent versions of her story to            the   effect  that  the   speakers  came  to   her  apartment            innocently.            Motion to Suppress            __________________                      Calderon argues  that the district  court erred  in            denying  his   motion  to   suppress   evidence  without   an            evidentiary hearing and that on  the merits the motion should            have  been granted.    The decision  to  hold an  evidentiary            hearing is committed  to the discretion of the district court            and our review  is for abuse of that discretion.   See United                                                               ___ ______            States v. Lewis, 40 F.3d 1325, 1332 (1st Cir. 1994).            ______    _____                      Evidentiary  hearings  on motions  to  suppress are            required  only where a  defendant makes a  sufficient showing            that the  evidence seized  was the  product of  a warrantless            search that does not fall within any exception to the warrant            requirement.  Id.   The burden is on the defendant  to allege                          ___            facts,  "sufficiently   definite,  specific,   detailed,  and            nonconjectural,  to enable  the  court  to  conclude  that  a                                         -6-                                          6            substantial claim  is presented."   Id.  (internal quotations                                                ___            omitted).                         Calderon argues that the motion to  suppress should            have been  granted because Delgado  gave no valid  consent to            the search, and that it was  error for the district court not            to take  evidence and  grant the motion.   Leaving  aside the            question of whether Delgado's consent was necessary under the            circumstances,1 we analyze  the issue as Calderon  has framed            it.   Calderon posits  that because Delgado  primarily speaks            Spanish,  she could  not have  understood  what the  English-            speaking police were saying in their late night, disorienting            appearance at  her apartment.   But this is a  supposition to            which Calderon gave  no flesh when he had  the opportunity on            the  motion to  suppress.   Calderon  filed no  affidavits in            support of the motion, not  even from Delgado, on whose state            of  mind  he  now  so  heavily relies.2    In  contrast,  the            prosecution, in opposing  the motion, provided copies  of the                                            ____________________            1.  For example, the police believed Calderon to be living            with Delgado and had an arrest warrant for Calderon.             "Generally, the police do not need a search warrant to enter            a suspect's home when they have an arrest warrant for the            suspect."  United States v. Lauter, 57 F.3d 212, 214 (2d Cir.                       _____________    ______            1995); see also Payton v. New York, 445 U.S. 573, 603 (1980).                    ___ ____ ______    ________                         2.  On appeal, Calderon asserts for the first time that the            police officers had already crossed the threshold of the            apartment when they asked Delgado for her consent, and that            this was an additional factor showing coercion.  The            argument, not having been made before the district court, is            waived.  See United States v. Carvell, 74 F.3d 8, _, No. 95-                     ___ _____________    _______            1606, slip op. at 15 (1st Cir. Jan. 19, 1996).                                          -7-                                          7            police  reports which told  a different story.   Delgado gave            the police varying versions of how the speakers came to be in            the  apartment.   There was  no indication  that she  did not            comprehend the explanation of the consent form or voluntarily            execute  it -- indeed, all indications  were to the contrary.            Calderon presented no evidence at all that Delgado's will was            "'overborne'" or  that she  suffered a  "'critically impaired            capacity  for   self-determination.'"     United  States   v.                                                      ______________            Wilkinson, 926 F.2d 22, 25 (1st Cir.) (quoting Schneckloth v.            _________                                      ___________            Bustamonte, 412 U.S. 218, 225 (1973)), cert. denied, 501 U.S.            __________                             _____ ______            1211 (1991).                       The  district   court  explained   its  denial   of            Calderon's motion to suppress without an evidentiary hearing:                      Defendant   vaguely   claims   that   Ms.                      Delgado's  consent  was  coerced  or  was                      otherwise ineffective,  but he  offers no                      affidavit or  statement from  Ms. Delgado                      to    that    effect,     describes    no                      circumstances  supporting  his assertion,                      and  makes no offer  of proof relative to                      any  other facts  that might  support his                      assertion.            There is no basis to disturb the district court's decision.            Constructive Amendment             ______________________                      Calderon's  second argument  is  that  there was  a            "constructive amendment"  to his indictment, in  violation of            his    Fifth  and  Sixth  Amendment  rights.    "The  [F]ifth            [A]mendment  requires that  a defendant  be tried  only  on a            charge made  by  the grand  jury,"  and the  Sixth  Amendment                                         -8-                                          8            "requires  that the defendant  be informed of  the nature and            cause of the  accusation."  United States v.  Kelly, 722 F.2d                                        _____________     _____            873, 876 (1st Cir. 1983), cert. denied, 465 U.S. 1070 (1984).                                      _____ ______            When Calderon was  first indicted on September  14, 1994, the            kidnapping charge omitted the phrase "for ransom or reward or            otherwise,"  a  necessary element  of  the offense.    See 18                                                                   ___            U.S.C.   1201.  Subsequently,  the missing phrase was  added,            and that superseding indictment was presented to a grand jury            on  October 26,  1994,  which  returned it.    And that  fact            disposes of Calderon's claim.  Cf. United States v. Dunn, 758                                           ___ _____________    ____            F.2d  30, 35 (1st  Cir. 1985) (constructive  amendment occurs            where  "the charging  terms of  the  indictment are  altered,            either literally or in effect,  by prosecution or court after                                                                    _____            the  grand jury  has  last passed  on them"  (emphasis added;            __________________________________________            internal quotations  omitted)).  A defendant  cannot complain            of  an improper constructive  amendment if the  indictment is            actually  amended by  resubmission to  the grand jury.3   Cf.            ________                                                  ___            United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert.            _____________    _______                                _____            denied, 488 U.S. 852 (1988).            ______            Sufficiency of Evidence            _______________________                      Calderon   argues  that   there  was   insufficient            evidence for the  jury to have found  him guilty, and so  the                                            ____________________            3.  Since Calderon's argument that it was error for the            district court to have denied his motion for the transcripts            of the second grand jury sitting is premised on there having            been an improper constructive amendment, we do not address            it.                                            -9-                                          9            district court erred in not granting his motion for acquittal            under Fed. R. Crim.  P. 29.  "In  reviewing a sufficiency  of            the evidence claim we look at the evidence  in the light most            favorable to the  verdict."  United States  v. Cruz-Kuilan, _                                         _____________     ___________            F.3d _, _,  Nos. 94-2217 & 95-1390,  slip op. at 6  (1st Cir.            Feb. 5, 1996).                       The thrust of Calderon's challenge is that the jury            should not have believed  the version of the story,  contrary            to  his,  recounted   by  two  of   his  accomplices  and   a            confidential informant whose son was in prison.  The argument            fails.  It  was well  within the  jury's province  for it  to            choose  to believe the testimony of Calderon's accomplices --            in the face of his  cross-examination of their characters and            motives -- and to disbelieve Calderon's version of the story.            See  id.  "Credibility determinations are uniquely within the            ___  ___            jury's province,  and we defer  to the jury's verdict  if the            evidence can  support  varying inferences."   Id.  (citations                                                          ___            omitted).            Alleged Verdict Inconsistency            _____________________________                      Calderon also argues that his carjacking conviction            cannot  stand  because  he  was  acquitted  of  the  firearms            possession charges  and firearm  possession was  an essential            element  of the  carjacking  offense.   In criminal  law "the            Supreme Court has made it clear that verdict inconsistency in            itself is not a sufficient basis for  vacating a conviction."                                         -10-                                          10            United  States v.  Lopez, 944  F.2d  33, 41  (1st Cir.  1991)            ______________     _____            (citing United States v. Powell, 469 U.S. 57 (1984), and Dunn                    _____________    ______                          ____            v. United States, 284 U.S. 390 (1932)).               _____________                      This Court explained in Lopez:                                              _____                      Verdict inconsistency  does not  indicate                      that the government necessarily failed to                      prove an  essential element  of its  case                      beyond  a  reasonable  doubt.  .  . .  We                      cannot  necessarily  assume[]   that  the                      acquittal . . . was proper -- the one the                      jury  really   meant.    It   is  equally                      possible  that  the  jury,  convinced  of                      guilt, properly reached its conclusion on                      [one] offense, and  then through mistake,                      compromise,  or  lenity,  arrived  at  an                      inconsistent  conclusion  on  the [other]                      offense.    As  long  as  the  trial  and                      appellate   courts   are   convinced   on                      independent   review   that   there   was                      sufficient evidence to sustain a rational                      verdict  of  guilt  beyond  a  reasonable                      doubt,   the   defendant    is   properly                      protected against  any risk  of injustice                      resulting from jury irrationality.             Id. (citations  and internal  quotations  omitted).   Because            ___            Calderon's conviction was  supported by sufficient  evidence,            the challenge based on alleged verdict inconsistency fails.                      Affirmed.                           _________                                         -11-                                          11
