UNITED STATES оf America, Appellee, v. Ramón DE JESÚS-VIERA, Defendant, Appellant.
No. 10-1365.
United States Court of Appeals, First Circuit.
Heard May 3, 2011. Decided Aug. 24, 2011.
We see no basis for reaching a different outcome under Title I of thе ADA. Indeed, given the parallel statutory language and the identical 1991 amendment to the statutes’ remedial provisions, we think it apparent that, Congress intended that these two employment discrimination provisions be treated uniformly. We thus agree with the virtually universal view that Title I of the ADA, like Title VII of the Civil Rights Act, ““addresses the conduct of employers only and does not impose liability on co-workers.” Fantini, 557 F.3d at 31 (quoting Powell v. Yellow Book U.S.A., Inc., 445 F.3d 1074, 1079 (8th Cir.2006)). Hence, the claims against Velez and Renta were properly dismissed.
declined to hear in the absence of any surviving federal claims.
So ordered. Costs to appellant.
III.
For the reasons we have discussed, we affirm the dismissal of Roman‘s claims under Title VII and
Robert Herrick for defendant-appellant.
Luke Cass, Assistant United States Attorney, with whom Nelson Perez-Sosa, Chief, Appellate Division, and Rosa Emilia Rodriguez-Velez, United States Attorney, were on brief for appellee.
Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.
LYNCH, Chief Judge.
United States Customs and Border Patrol (CBP) officers seized over two kilograms of heroin and ninety-six kilograms of cocaine from Ramon De Jesus-Viera‘s vehicle during a border search conducted upon De Jesus-Viera‘s return to Puerto Rico from the Dominican Republic. A jury convicted De Jesus-Viera on onе count of knowingly and intentionally possessing heroin and cocaine with intent to distribute in violation of
De Jesus-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 thе 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
I.
Because De Jesus-Viera questions the sufficiency of the evidence supporting his conviction, we relate the facts in the 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 Jesus-Viera arrived in Mayagüez, Puerto Rico, on a car and passenger ferry from Santo Domingo, Dominican Republic. CBP Officer Javier Ruiz-Toro was working in the port‘s primary inspection area at the time, and De Jesus-Viera presented him with a Puerto Rico driver‘s license, birth certificate, and customs declaration card.
As is customary practice for CBP officers, Ruiz-Toro asked De Jesus-Viera questions to determine whether to permit his entry or instead refer De Jesus-Viera to secondary inspection. In response, De Jesus-Viera stated thаt he had been in the Dominican Republic to visit friends for two weeks and had nothing to declare. Ruiz-Toro asked De Jesus-Viera how long he had owned his vehicle, a 1984 Chevrolet El Camino. De Jesus-Viera replied that he had only recently purchased it. This raised Ruiz-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. Ruiz-Toro pressed further, inquiring as to whether De Jеsus-Viera had made any repairs to the vehicle, which De Jesus-Viera denied. During this time, De Jesus-Viera‘s voice was trembling, his hands and legs were shaking, he was sweating profusely, and he avoided eye contact. De Jesus-Viera explained his demeanor by telling Ruiz-Toro that he had a hangover, but Ruiz-Toro did not believe him. In light of De Jesus-Viera‘s demeanor and his vehicle‘s recent registration, Ruiz-Toro referred him to secondary inspection.
CBP Officer Jorge Pitre, working in the secondary inspection area, asked De Jesus-Viera about the duration and purpose of his trip to the Dominican Republic. De Jesus-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 Jesus-Viera avoided eye contact and was slightly shaking during the questioning.
After questioning De Jesus-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 Jesus-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 Jesus-Viera‘s nervousness, Pitre asked CBP Officer Isidro Mercado to cross-interview De Jesus-Viera.
Mercado asked De Jesus-Viera about the purpose of his trip, the amount of money he took to аnd from the Dominican Republic, and whether he had made any repairs to his vehicle. De Jesus-Viera responded that he had traveled with about $3,000 “to spend ... with girls,” that he was returning with roughly $200, and that he had not made any vehicle repairs. Mercado observed De Jesus-Viera shaking and found him to be nervous.
Officers Mercado and Pitre then visibly inspected the interior and undercarriage of De Jesus-Viera‘s vehicle. They opened the doors, pushed the seats forward, and saw a large spеaker 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
CBP Officer Luis Henriquez, 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 Jesus-Viera‘s vehicle so as to allow a fiberoptic cable to peer inside the 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 Jesus-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 Jesus-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
On October 4, 2007, De Jesus-Viera filed a motion to suppress the narcotics evidence seized from his vehicle on the 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 Jesus-Viera‘s motion to suppress on the grounds that the drilling qualified as a routine border search.
De Jesus-Viera moved for reconsideration of the recommended ruling based on United States v. Flores-Montano, 541 U.S. 149, 124 S.Ct. 1582, 158 L.Ed.2d 311 (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 Jesus-Viera‘s arguments and denying De Jesus-
The jury convicted De Jesus-Viera on both counts following a four-day trial from September 22, 2008, to September 25, 2008. De Jesus-Viera filed a motion for judgment of acquittal,
A sentencing hеaring was held on February 12, 2010. De Jesus-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
III.
A. Denial of De Jesus-Viera‘s Motion to Suppress
We first reject De Jesus-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 Jesus-Viera has waived his Fourth Amendment 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 Jesus-Viera also argues the denial of his suppression motion constitutes plain error. See
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
“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, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)) (internal quotation marks omitted), which must be “grounded in specific аnd articulable facts,” id. (quoting United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)) (internal quotation marks omitted). The record shows an escalating sequence of events in which each step taken by the CBP officers led reasonably to the next. That sequence was: (1) De Jesus-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 Jesus-Viera gave inсonsistent 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 Jesus-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 Jesus-Viera was engaged in criminal activity that justified drilling into the secret compartment. De Jesus-Viera‘s Fourth Amendment claim fails.4
De Jesus-Viera next argues the district court erred by instructing the jury that, in deciding whether De Jesus-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 Jesus-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, 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 Jesus-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 hаve 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 nоt 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 Jesus-Viera acted negligently was not enough.
Further, as discussed below, there was considerable evidence that De Jesus-Viera had actual knowledge of the illegal narcotics in his vehicle.
C. Sufficiency of the Evidence
De Jesus-Viera argues the government failed to adequately prove that he аcted “knowingly and intentionally,” an essential element under
“[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 Jesus-Viera‘s convictions. The jury could have inferred that De Jesus-Viera acted knowingly and intentionally from testimony that the drugs were found in a car that De Jesus-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
The jury also could have inferred that De Jesus-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 Jesus-Viera knew that the over $1.45 million worth of drugs were in his car based on its сommon sense.
Testimony regarding De Jesus-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 Jesus-Viera urges that his convictions should be reversed because, he argues, the facts of his case are similar to 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 Jesus-Viera is mistaken: Pérez-Meléndez is distinguishable from his case.
In Pérez-Meléndez, two defendants, commercial truck drivеrs, 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) whаt that shipment (supposedly) contained.” Id.
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 Jesus-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;
D. Offense Level Reduction for Minor Role
Finally, De Jesus-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
The minor role guideline,
De Jesus-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.
LYNCH
CHIEF JUDGE