United States v. Vazquez , 724 F.3d 15 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1203
UNITED STATES OF AMERICA,
Appellee,
v.
KATHY VÁZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Thompson and Kayatta,
Circuit Judges.
Allison J. Koury, by appointment of the court, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for appellee.
July 18, 2013
KAYATTA, Circuit Judge. Kathy Vázquez sold crack cocaine
to a confidential informant. A police search of her home later
turned up powder cocaine, cash, and drug-dealing paraphernalia.
Based on this evidence, Vázquez was convicted of three drug-related
offenses and sentenced to 78 months' imprisonment.
On appeal, Vázquez challenges three different steps in
the process that brought her to a prison cell. First, she claims
that her consent to the FBI's warrantless search of her home was
secured by a false claim that a lawful, warrantless search of her
home would ensue without her consent, rendering the evidence
discovered through that search inadmissible at trial. Second, she
argues that the district court should have instructed the jury on
the defense of duress. Finally, she asserts that the district
court miscalculated her sentence under the United States Sentencing
Guidelines by assigning her responsibility for too much crack
cocaine, as well as for a gun possessed by her co-conspirator
before the beginning of the charged conspiracy.
We find that the district court erred in failing to
determine whether there were reasonable grounds to support the
claim made to Vázquez that a lawful, warrantless search of her home
would ensue without her consent. Otherwise, we reject Vázquez's
arguments on appeal. As explained more fully below, we therefore
affirm Vázquez's conviction on two of the three offenses, vacate
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her conviction on the third, and remand the case for further
proceedings consistent with this opinion.
I. Background
In the fall of 2007, the Federal Bureau of Investigation
received a tip from a confidential informant that Vázquez and her
boyfriend, Bernado "Junito" Soto, were involved in the distribution
of illegal drugs. On December 5, 2007, the FBI arranged for that
informant to make a controlled buy of crack cocaine from Vázquez
and Soto. The informant phoned Vázquez and agreed to meet her
inside a local Walgreens to purchase 14 grams of crack cocaine from
her, pre-bagged for resale. The sale occurred as planned, while
Soto waited outside. After Vázquez and the informant exited the
store together, the informant spoke to Soto for a few minutes about
what Soto wanted done with a gun that he had previously loaned to
the informant's boyfriend.
The next day, the informant made a second controlled buy
of another 14 grams of crack cocaine from Vázquez and Soto, this
time at Vázquez's home. The three chatted about various aspects of
their drug dealing activities, including a scheme to smuggle liquid
cocaine from the Dominican Republic into the United States.
The last controlled buy was supposed to occur on January
16, 2008. The informant again visited Vázquez's home, seeking to
purchase crack cocaine, but this time Vázquez and Soto told her
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that they only had powder cocaine in stock and that it was not good
for cooking into crack.
Later that same day, New Hampshire Probation and Parole,
working in coordination with the FBI, arrested Soto on a parole
violation in a parking lot near a gym in Nashua. Thereupon, the
FBI sought and received Vázquez's permission to search her home,
where Soto had been staying. The search turned up two plastic bags
of powder cocaine; a number of unused plastic bags; approximately
$4,620 in cash; a Western Union receipt dated three days prior
indicating that Vázquez had sent money to the Dominican Republic;
a digital scale; two kinds of cutting agent used to prepare cocaine
for sale; and a filter for cutting cocaine.
Vázquez was subsequently indicted on four separate
counts: (I) Conspiracy to Distribute Cocaine and Cocaine Base
(crack) beginning on December 5, 2007, and continuing through
January 16, 2008; (II) Distribution of Cocaine Base on December 5,
2007; (III) Distribution of Cocaine Base on December 6, 2007; and
(IV) Possession of Cocaine with Intent to Distribute on January 16,
2008. See 21 U.S.C. § 841(a)(1) & 846 (2006). Prior to trial,
Vázquez moved to suppress the evidence seized in the search of her
home, pressing the argument that her consent had been secured by a
false claim of authority to search. After an evidentiary hearing,
the district court denied her motion to suppress. Vázquez was
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ultimately convicted on the first, third, and fourth counts, and
was acquitted on the second count.
At sentencing, the district court calculated Vázquez's
recommended sentence under the United States Sentencing Guidelines
by attributing to her approximately 100 grams of crack cocaine,
which gave her a base offense level of 26. See U.S.S.G. §
2D1.1(c)(6). The court also found that a firearm was possessed in
connection with the charged conspiracy and accordingly enhanced
Vázquez's base offense level by two, raising it to 28. See id. at
§ 2D1.1(b)(1). In combination with Vázquez's criminal history
category of I, these findings yielded a recommended sentence of 78
to 97 months. The court sentenced Vázquez to a 78-month term of
imprisonment.
II. Analysis
A. The Search of Vázquez's Home
The Fourth Amendment forbids law enforcement from
searching a suspect's home without a warrant unless the search
falls under "one of the 'few specifically established and well-
delineated exceptions' to the warrant requirement." United States
v. Forbes, 181 F.3d 1, 5 (1st Cir. 1999) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973)). Consent to the search is
one such exception. See id.-5-
For consent to a search to be valid, however, the
government must prove by a preponderance of the evidence that the
consent was uncoerced. See United States v. Vanvliet, 542 F.3d
259, 264 (1st Cir. 2008). The presence of coercion is a question
of fact based on the totality of the circumstances, including "the
consenting party's knowledge of the right to refuse consent; the
consenting party's possibly vulnerable subjective state; and
evidence of inherently coercive tactics, either in the nature of
police questioning or in the environment in which the questioning
took place." United States v. Twomey, 884 F.2d 46, 51 (1st Cir.
1989) (citing Schneckloth, 412 U.S. at 227, 229, 247)).
Importantly, courts must also consider "any evidence that law
enforcement officers' ... misrepresentation prompted defendant's
acquiescence to the search." Vanvliet, 542 F.3d at 264-65 (citing
Moran v. Burbine, 475 U.S. 412, 421 (1986)).
As we will explain, this is a case in which the record is
clear that a representation by the FBI prompted Vázquez's
acquiescence to the search. Specifically, the FBI obtained
Vázquez's consent to search her home by telling her that a
warrantless search of her home would be conducted without her
consent. The central questions thus posed for the district court
were whether the representation was correct and, if not, whether
the consent was invalid and the search unlawful. In answering
these rather difficult questions, the district court found itself
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unable to determine whether the representation used to procure
Vázquez's consent was false. Nevertheless, the court ruled that,
as long as the FBI agents acted in "subjective good faith" in
claiming that a warrantless search could be conducted without
Vázquez's consent, her consent validated the search.
On appeal from that ruling, we review the district
court's conclusions of law de novo and its findings of fact for
clear error. See Ornelas v. United States, 517 U.S. 690, 696-98
(1996). In so doing, we find that reasonableness, rather than
subjective good faith, is the controlling legal standard; consent
procured by a claim that a search will ensue anyhow is valid only
if the claim is based on a reasonable assessment of the facts under
the applicable law. Because the district court did not determine
whether the FBI agents' representation was correct based on a
reasonable assessment of the facts, because the record does not
dictate an answer to this question, and because admission of the
results of the search at trial was not harmless as to Count IV,
remand is required. Our reasoning follows.
1. Procuring Vázquez's Consent
Once Soto was arrested, two FBI agents dressed in plain
clothes approached Vázquez, identified themselves, and asked if she
would have a cup of coffee with them at a nearby Dunkin' Donuts.
Neither agent displayed firearms or handcuffs, touched Vázquez, or
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told her that she was under arrest. Vázquez agreed to join them
for coffee.
Inside the Dunkin' Donuts, the agents ordered Vázquez a
cup of coffee and allowed her to use the restroom unescorted while
they secured a table. Vázquez later joined the agents at the
table. She did not appear upset or unsettled. One of the agents
asked Vázquez for her cooperation in their investigation,
explaining that Soto had been arrested for a parole violation.
As it became clear that Vázquez was not willing to
cooperate with the investigation, the agents changed tack and
attempted to obtain Vázquez's consent to a search of her home.
Vázquez asked the FBI agents if they had a search warrant for her
home. In response, they told her that, while they did not have a
warrant, New Hampshire Probation and Parole had the authority to
search her home without her consent, and was going to do so. The
agents based that assertion on information communicated to them by
New Hampshire Probation and Parole, which had informed the FBI
earlier in the day that it intended to search Soto's residence--
assumed to be the same as Vázquez's--after his arrest.1
1
The government's brief claims that the FBI agents "merely
provided the defendant with truthful information that another law
enforcement agency believed that it had the right to search on a
ground other than consent." Says the government, "Special Agent
Schneider made no statement suggesting his own view on this
authority." Special Agent Schneider, however, testified flatly to
the contrary: "I'm sure I told her that probation and parole has
the authority to conduct a search at that residence." In a similar
-8-
The FBI agents explained to Vázquez that if she consented
to an authorized search, she could help the agents to separate her
property from Soto's and thereby distance herself from his illegal
activities. Vázquez expressed concern that the search might make
a mess of her house, and asked a few other questions about the
process. After the officers explained to her how the search would
proceed, and then reviewed with her a written consent form, she
signed the form granting consent to search her home.
The entire conversation in the Dunkin' Donuts lasted
between 15 and 20 minutes. Having obtained Vázquez's consent, the
FBI agents drove to her home, where they met New Hampshire
Probation and Parole officers. Together, the agents and officers
jointly searched the premises, discovering the evidence described
above.
Three aspects of the discussion between the FBI agents
and Vázquez are especially pertinent. First, nothing in the record
can be reasonably understood to suggest that Vázquez would have
consented to the search but for the agents' assertion that a search
by New Hampshire Probation and Parole would ensue anyway. Having
first refused to cooperate generally, her initial response to the
agents' request for consent to search was to ask if there was
vein, the government suggests that the agents merely allowed that
a search without consent was "likely." As the district court
expressly found, however, the agents told Vazquez "that the state
had the authority to search and in fact were going to search."
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already a warrant; i.e., whether a search was going to happen
either way. She only consented to the search after she was assured
that a search was inevitably going to occur, even without a
warrant; i.e., there was no possible upside to refusing consent.
Second, while the agents' confident and professional behavior
likely enhanced the credibility of any assurances they conveyed,
nothing in the record suggests that what they said or did was
otherwise coercive or in any way inappropriate. Third, there is no
basis for reversing as clear error the district court's
determination that the agents honestly believed that New Hampshire
Probation and Parole officers could conduct a lawful search without
Vázquez's consent.
2. New Hampshire Probation and Parole's Authority to Search
Vázquez's Home
On appeal, the government correctly observes that, if New
Hampshire Probation and Parole did indeed have the right to conduct
the search of Vázquez's home without her consent, then the issue of
her consent would be moot. That is so because the consent secured
no earlier or broader search than could have been conducted
lawfully were the claim of authority correct. Building on this
observation, the government then claims that Vázquez never
challenged the independent authority of New Hampshire Probation and
Parole to conduct the search. Therefore, reasons the government,
we can affirm the denial of the motion to suppress on that
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alternative ground, rendering the consent issue effectively moot.
The flaw in this mootness argument is that Vázquez did
fairly challenge the independent authority of New Hampshire
Probation and Parole to conduct a search of her home. Indeed, her
argument was precisely that because New Hampshire Probation and
Parole did not have such authority, the agents should be found to
have employed a false claim to procure her consent. To suggest
that Vázquez somehow artificially limited this argument in a manner
that left unchallenged the authority of New Hampshire Probation and
Parole as an independent basis for sustaining the validity of the
search is to suggest that the parties and the district court
knowingly engaged in a pointless hearing.
Certainly, the district court did not view the authority
of New Hampshire Probation and Parole as an unchallenged,
alternative basis for denying the motion to suppress. Rather, the
court expressly avoided deciding whether New Hampshire Probation
and Parole actually had the authority to search Vázquez's home or
whether it was reasonable to think that they did have such
authority. The district court explained: "I don't think that's the
turning point." Instead, the district court determined that,
because the FBI agents believed that a search could be conducted
anyway, and because the FBI agents did not otherwise coerce
Vázquez's consent, the consent validated the search even if New
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Hampshire Probation and Parole could not have lawfully conducted a
search.2
It is, indeed, unclear whether New Hampshire Probation
and Parole had the right to search Vázquez's home. One suggested
basis for the search -- the arrest warrant issued for Soto due to
his violation of his parole -- could not have sufficed. The
warrant granted "the limited authority to enter [the] dwelling in
which [Soto] live[d] when there [was] reason to believe [that he
was] within." Payton v. New York, 445 U.S. 573, 602 (1980). Since
Soto had already been arrested at another location, the arrest
warrant did not authorize a subsequent search of his home as a
matter of law. Cf. United States v. Graham, 553 F.3d 6, 15 (1st
Cir. 2009) ("Although the officers possessed a valid arrest
warrant, this warrant only permitted them to seize Graham and did
not, standing alone, authorize the search of the bedroom where
Graham was found.").
As a possible alternative justification for search
without consent, that leaves only the fact that, as a condition to
his parole, Soto had agreed that New Hampshire Probation and Parole
could search his residence at any time. This kind of probation
condition can so diminish a probationer's expectation of privacy
2
To the extent that the government is also arguing that it be
allowed to supplement the record on remand, the district court
retains discretion in structuring the remand proceeding.
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that it would permit police officers to search his residence
without a warrant based only on a reasonable suspicion of criminal
conduct, see United States v. Knights, 534 U.S. 112, 119-121
(2001), which law enforcement clearly had here.3 However,
Vázquez's case differs from Knights in several important ways:
Soto's parole agreement used different language than Knights's,4
Soto had already been arrested before the search occurred,5 and
Soto might not have been residing in Vázquez's home.
Because the district court did not reach the question of
whether New Hampshire Probation and Parole really did have the
authority to search Vázquez's home, we have no analysis of whether
the terms of Soto's probation agreement would permit a warrantless
search of his home based only on reasonable suspicion, nor whether
such a search would be permissible following his arrest.
Importantly, we also have no factfinding on whether Soto resided
with Vázquez and, if not, what the various officers knew that might
have reasonably led them to believe that Soto resided with Vázquez.
3
Although some states have passed statutes giving law
enforcement the power to search the homes of persons released on
parole without any cause at all, see, e.g., Cal. Penal Code §
3067(b)(3); see also Samson v. California, 547 U.S. 843 (2006)
(upholding such statutes against Fourth Amendment challenge), we
cannot locate a similar provision under New Hampshire law, see N.H.
Rev. Stat. §§ 504-A:1-15; 651-1A:1-25 (2013), and the government
does not point us to one.
4
See, e.g., Graham, 553 F.3d at 15-18.
5
See, e.g., United States v. Trujillo, 404 F.3d 1238, 1242-43
(10th Cir. 2005)
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Without further fact-finding and analysis from the district court,
we cannot decide at this juncture whether the parole condition was
a lawful basis for New Hampshire Probation and Parole to search
Vázquez's home. Therefore, we must assume for purposes of this
appeal that New Hampshire Probation and Parole officers did not
have the right to search Vázquez's home absent her consent.
3. "Subjective Good Faith" Versus "Reasonableness"
Given the foregoing, the question posed is whether
Vázquez's consent can justify the search if secured by a sincere,
but erroneous representation that a search would ensue anyhow. The
otherwise well-developed case law on consensual searches secured by
the looming promise of a non-consensual search marks the boundaries
of our inquiry, but provides no clear answer to the specific
question posed here. The law is clear, for example, that consent
to a search is invalid if given only because of an officer's
knowingly false assurance that there will soon be a lawful search
anyway. Bumper v. North Carolina, 391 U.S. 543, 548 (1968);
United States v. Miller, 589 F.2d 1117, 1132 (1st Cir. 1978); 2
Wayne R. LaFave, et al., Criminal Procedure § 3.10(b), at 410-11
(3d ed. 2007). Similarly, the law is almost as clear that consent
to a search is not invalid merely because it is secured by an
officer's accurate assurance that there will soon be a lawful
search anyway. See United States v. Marshall, 348 F.3d 281, 286
(1st Cir. 2003); United States v. Lee, 317 F.3d 26, 33 (1st Cir.
-14-
2003); Twomey, 884 F.2d at 52 (fact that warrant would have issued
rendered it unnecessary to decide whether and when honest, but
mistaken, representation implying that warrant could be obtained
invalidated consent); see also United States v. Wilkinson, 926 F.2d
22, 25 (1st Cir. 1991), overruled on other grounds, Bailey v.
United States, 516 U.S. 137 (1995) (the officers accurately stated
the likely consequences if the suspect refused to consent to a
search); Robbins v. MacKenzie, 364 F.2d 45, 49-50 (1st Cir. 1966)
("Bowing to events, even if one is not happy about them, is not the
same thing as being coerced."). In short, the law rejects consent
secured by knowingly false representations while at the same time
seeing no reason to deter officers from securing convenient and
prompt consensual access by conveying accurate information to a
recipient.6
This case falls between these boundaries because, as
noted, we have neither knowing falsity nor a determination of
accuracy. While there is no controlling precedent on point, the
applicable principles and analogous case law nevertheless convince
us that the agents' subjective good faith is not enough. The
Fourth Amendment by its express terms demands that searches be
"reasonable," not merely based on good intentions. "If subjective
6
Using the concept of "coercion" to distinguish these two
situations is something of a misnomer. In each case, the same
amount of pressure is brought to bear on the person's will. The
distinction resides more in concepts of knowing misrepresentation,
or "trickery." See Vanvliet, 542 F.3d at 264.
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good faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would be ‘secure in their
persons, houses, papers, and effects,’ only in the discretion of
the police." Beck v. Ohio, 379 U.S. 89, 97 (1964). Law
enforcement officers face varied and ambiguous situations in the
course of maintaining the order necessary to make civil society
possible. They are entitled to err in assessing the facts, but
"the mistakes must be those of reasonable men, acting on facts
leading sensibly to their conclusions . . . ." Brinegar v. United
States, 338 U.S. 160, 176 (1949).
The government's position, that the subjective good faith
of its officers is enough to sustain the validity of consent as an
independent justification for a search, overlooks the compelling
potency of a representation that a search is imminent even without
consent. When law enforcement officers seek consent to search a
person's home without making such a representation, the person
giving the consent can reasonably believe that she has a choice.
Such consent, unless otherwise coerced, stands on its own as an
independent basis for sustaining the validity of the search. See
Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). Conversely,
"'[w]hen a law enforcement officer claims authority to search a
home under a warrant, he announces in effect that the occupant has
no right to resist the search.'" Id. at 234 (quoting Bumper, 391
U.S. at 550). Consent pried loose by such a claim of authority is
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merely acquiescence. As such, it serves poorly as an independent
basis for sustaining the validity of the search. Rather, its force
is largely derivative, neither adding to nor subtracting from the
reasonableness of the representation of inevitability used to
secure the consent. Accordingly, if we were to allow consent to
validate a search secured by an authoritative pronouncement of
inevitability where the officers act only in subjective good faith,
and not reasonably, we would largely eliminate any requirement that
reason necessarily play a role in securing the search.
Illinois v. Rodríguez, 497 U.S. 177 (1990), supports our
conclusion that reasonableness, not merely subjective good faith,
is the standard that the government must meet. In Rodríguez, the
police conducted a warrantless search based on the consent of a
person who appeared to have, but did not in fact have, authority
over the premises. See id. at 179-82. The defendant argued that
without valid consent from an authorized party, the search was
unlawful. See id. at 180. The Supreme Court rejected that
argument, holding that no Fourth Amendment violation occurs when
the police reasonably, though erroneously, believe that the person
who has consented to their entry has authority over the premises.
See id. at 185-86.
For present purposes, the important point is that in
rejecting the argument that the police must be correct on the
facts, the Court also made clear that an honest belief in the
-17-
validity of the consent was insufficient: "As with other factual
determinations bearing upon search and seizure, determination of
consent to enter must 'be judged against an objective standard . .
. .'" Id. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22
(1968)). The Court emphasized that "what is generally demanded of
the many factual determinations that must regularly be made by
agents of the government . . . is not that they always be correct,
but that they always be reasonable." Id. at 185-86; cf. Hill v.
California, 401 U.S. 797, 803-04 (1971) ("The upshot was that the
officers in good faith believed Miller was Hill and arrested him.
They were quite wrong, as it turned out, and subjective good-faith
belief would not in itself justify either the arrest or the
subsequent search.").
In Rodríguez, the justification for the search was
consent given by a person who law enforcement believed was
authorized to do so. Here, the justification was consent secured
by law enforcement's announced belief that a nonconsensual search
would ensue anyway. We see no reason why reasonableness need not
characterize the officers' beliefs in both circumstances.
Otherwise, unreasonable but honest officers could parlay unlawful
grounds for conducting searches into lawful searches merely by
using the prospect of the unlawful search as a means of securing
acquiescence.
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Our holding is compatible with the few decisions we have
found that have addressed slight variants of the issue before us.
Three cases have held that a law enforcement officer's honest but
mistaken claim of lawful authority to search invalidated the
defendant's consent and required exclusion of the resulting
evidence. In all three cases, the police lacked an objectively
reasonable factual basis for their assertions--their claims of
lawful authority were wrong even on the facts as the police
understood them. See United States v. Molt, 589 F.2d 1247, 1251-52
(3d Cir. 1978) (consent vitiated when customs agents innocently but
incorrectly asserted the legal authority to conduct a warrantless
search of a business's records); Cooper v. State, 587 S.E.2d 605,
612-13 (Ga. 2003) (consent vitiated when police officer
unintentionally misrepresented to the defendant that he was
required to submit to a warrantless blood test); Lobania v. State,
959 S.W.2d 72, 73-74 (Ark. Ct. App. 1998) (consent vitiated when
police translator innocently but incorrectly mistranslated an
officer's request to search as an officer's claim of authority to
search). One case of which we are aware held that an honest but
mistaken claim of lawful authority to search did not vitiate the
defendant's consent. In that case, the police had an objectively
reasonable basis for their claim; it just turned out that they were
mistaken about the underlying facts. See United States v. Richard,
994 F.2d 244, 252 (5th Cir. 1993) (consent valid when police
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officers honestly but inaccurately informed the subject of the
search that her boyfriend had already agreed to allow them to
search her motel room).
The conclusion that consent is invalid if procured by an
officer's unreasonable claim that a lawful search will ensue anyway
imposes no unusual burden on law enforcement officials. In many
walks of life, agreements given in justified reliance on false
representations are voidable. See Restatement (Second) of
Contracts § 164(1) (1981). (Indeed, in an ordinary contract case,
even reasonableness in making the representation might not save the
deal. Id.) Law enforcement officials, moreover, are knowledgeable
in assessing whether the facts render a search lawful. In this
context, it is no great demand to expect that they know the law and
themselves be reasonable in assessing the facts when they procure
consent to search a person's home by assuring the person that a
lawful search will ensue anyway.
In sum, by failing to determine whether the claimed
authority to search was based on a reasonable assessment of the
facts, the district court may have erred in its ultimate decision
denying the motion to suppress.
4. Harmless Error Analysis
Even if admission of the results of the search may have
been error, we need not vacate and remand if, beyond a reasonable
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doubt, the admission of the evidence could not have impacted the
result below. Neder v. United States, 527 U.S. 1, 7 (1999); Fed.
R. Crim. P. 52(a); see also United States v. Crooker, 688 F.3d 1,
9 (1st Cir. 2012); United States v. Jiménez, 419 F.3d 34, 41-42
(1st Cir. 2005).
When we apply the harmless error analysis, we place the
burden on the government to show "that the supposed error did not
affect the outcome of trial." Jiménez, 419 F.3d at 42. We conduct
"a panoramic, case-specific inquiry considering, among other
things, the centrality of the tainted material, its uniqueness, its
prejudicial impact, the uses to which it was put during the trial,
the relative strengths of the parties' cases, and any telltales
that furnish clues to the likelihood that the error affected the
factfinder's resolution of a material issue." United States v.
Castellini, 392 F.3d 35, 52 (1st Cir. 2004) (quoting United States
v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir. 1993)) (internal
quotation marks omitted).
We begin with Count I, Conspiracy to Distribute Cocaine
and Cocaine Base (crack) beginning on December 5, 2007 and
continuing through January 16, 2008. See 21 U.S.C. §§ 841(a)(1) &
846. The evidence discovered inside Vázquez's home, where Soto was
at least temporarily staying, was highly incriminating, but it was
also merely cumulative of the substantial additional evidence
offered at trial indicating that Vázquez and Soto had been working
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together to sell crack cocaine during the period in question.
Aside from the materials found inside Vázquez's home, the
government also presented evidence that Soto and Vázquez together
sold crack cocaine to the confidential informant at their home on
December 6; that they planned to sell her crack cocaine once more
at Vázquez's home on January 16; and that they engaged in multiple
recorded conversations during which they both discussed their joint
drug-dealing venture in great detail.7 Based on this evidence, we
are convinced that the jury would still have convicted Vázquez on
the first count even if the evidence from the search of her home
had been suppressed.
As to Count III,8 Distribution of Cocaine Base on
December 6, 2007, see 21 U.S.C. § 841(a)(1), the evidence found in
Vázquez's home was superfluous. The government presented both
witness testimony and recorded conversations indicating that
Vázquez sold 14 grams of crack cocaine to the confidential
informant on December 6. Nothing from the search of Vázquez's home
was needed to support this conviction.
7
The government also presented evidence that the two sold
crack to the informant on December 5, but the jury acquitted
Vázquez on the charge related to that transaction. In any event,
the evidence of the December 5 sale is merely cumulative, since
there was substantial additional evidence that Vázquez and Soto
were conspiring together to distribute crack cocaine.
8
As noted above, the jury acquitted Vázquez on Count II.
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Finally, in regard to Count IV, Possession of Cocaine
with Intent to Distribute on January 16, 2008, see 21 U.S.C. §
841(a)(1), the prosecution's case was based almost entirely on the
cocaine that the FBI agents had seized from inside Vázquez's home.
The only other evidence supporting Count IV was the confidential
informant's testimony at trial that Vázquez had mentioned to her on
January 16 that she and Soto had some powder cocaine in their
possession. We are not convinced "beyond a reasonable doubt" that
the jury would still have convicted Vázquez on Count IV based
solely on this stray and unsubstantiated remark. Neder, 527 U.S.
at 7 (internal quotation marks omitted). Accordingly, a remand
will be necessary.
5. Guidance on Remand
Given the relative novelty of the issues as framed in a
case involving a joint law enforcement exercise and the assertion
of an independent and a derivative ground for the warrantless
search, we address three additional questions that necessarily will
arise below as a foreseeable product of our holding.
First, to what determination does the assessment of
reasonableness apply: the determination of the facts, or the
determination of what the law is, based on those facts? As at
least two other sister circuits have noted, Rodríguez permits
warrantless searches based only on a reasonable mistake of fact,
not on a mistake of law. See United States v. Salinas-Cano, 959
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F.2d 861, 865-66 (10th Cir. 1992); United States v. Whitfield, 939
F.2d 1071, 1073-75 (D.C. Cir. 1991); see also United States v.
Harrison, 689 F.3d 301, 309-10 (3d Cir. 2012). In other words,
Rodríguez "applies to situations in which an officer would have had
valid consent to search if the facts were as he reasonably believed
them to be." Whitfield, 939 F.2d at 1074. Rodríguez does not
permit an officer to search if his mistake is about the law -- for
instance, if he mistakenly believes that the Fourth Amendment
authorizes a search when in fact it does not, even based on the
facts as he understands them.
Second, who must have been reasonable in assessing the
facts, the FBI agents who told Vázquez that New Hampshire Probation
and Parole could and would search, or the state officers who so
told the FBI? On the one hand, agents working in a team should be
able to rely on facially plausible statements made by their
colleagues without having to conduct due diligence on their own.
On the other hand, it would create perverse incentives if
unreasonable judgments by one officer directly involved in the
arrest and search could be laundered by transmission through
another officer as ipse dixit. The answer that best balances the
considerations in this particular case is that the FBI agents were
entitled to supplement their own knowledge of the facts by relying
on the judgments of the state officers concerning the facts,
provided that those judgments were themselves reasonable. Cf.
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United States v. Hensley, 469 U.S. 221, 231 (1985) ("[W]hen
evidence is uncovered during a search incident to an arrest in
reliance on a flyer or bulletin, its admissibility turns on whether
the officers who issued the flyer possessed probable cause to make
the arrest."). See generally United States v. Ramirez, 473 F.3d
1026, 1032-37 (9th Cir. 2007) (describing "collective knowledge"
doctrine).
Third, and perhaps ironically in view of the manner in
which the issues were prioritized below, our ruling renders
Vázquez's consent irrelevant in this particular case because the
threatened search by New Hampshire Probation and Parole used to
secure consent was actually conducted simultaneously and co-
extensively with the consented search. If that search by New
Hampshire Probation and Parole was valid, then as the government
argued below, there is no need to rely on Vázquez's consent.
Conversely, if that search was unlawful on its own terms, it would
only be because the facts as reasonably perceived by the officers
did not as a matter of law justify the warrantless search. The
consent here is thus truly derivative, and drops out of the
equation altogether in determining the lawfulness of this
particular search.
On remand, the district court will therefore need to
decide whether the facts as reasonably understood by the officers
and agents at the scene gave them the authority to search Vázquez's
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residence without Vázquez's consent. If so, the search was lawful.
If not, the consent would not have validated the search because it
would have been secured as a result of either an unreasonable
assessment of the facts or a misapprehension of the law.
B. The Requested Jury Instruction on Duress
Vázquez's second claim of error challenges the district
court's refusal to instruct the jury on the defense of duress.
Duress is a common law defense that excuses criminal conduct if the
defendant violated the law only because she was unlawfully
threatened by another person with death or serious bodily injury.
See United States v. Bailey, 444 U.S. 394, 409-10 (1980).
At the close of trial, Vázquez asked the district court
to include a duress defense in its charge to the jury. She
emphasized that Soto was a member of the "Ñetas," a prison gang
that originated in Puerto Rico but had since acquired thousands of
members across the United States, including in New Hampshire, and
which has been involved in drug trafficking, gun violence, and
witness intimidation. She also noted that Soto had access to a
gun, and that she was particularly fearful of firearms because she
had witnessed her father shoot her mother when she was a child.
Vázquez recounted that Soto had told her about the Ñeta
gang's rules and that his gang-member friends had shared stories
"of what they do to people [who] . . . snitch." Although Soto
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never threatened her, and she did not believe that he would have
hurt her himself, Vázquez felt that she had been implicitly
threatened that other Ñeta gang members might harm her or her
children if she attempted to go to the police. Allegedly, she only
participated in the scheme in order to protect herself and her
children.
The district court was unmoved. It declined Vázquez's
request for a duress instruction, citing a lack of evidence in the
record to support that theory of defense. Vázquez timely preserved
her position by objecting to the omission of the instruction before
the jury retired.
On appeal, we review de novo whether the defendant made
a threshold showing that the record evidence, construed in her
favor, supported her requested instruction. United States v.
Baird, 712 F.3d 623, 627 (1st Cir. 2013).9 In this case, it is
clear that Vázquez has not made such a showing.
First, the threat she cites was hardly immediate, or even
imminent. Rather, it was no more than a "vague threat of future
9
If the evidence does support the requested instruction, we
then move to a three-part test, also conducted de novo, which
determines whether the district court's refusal to give the
instruction constituted reversible error. According to that three-
part test, we vacate the defendant's conviction if her requested
instruction was: "(1) substantively correct as a matter of law, (2)
not substantially covered by the charge as rendered, and (3)
integral to an important point in the case so that the omission of
the instruction seriously impaired the defendant's ability to
present [her] defense." Baird, 712 F.3d at 627.
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harm," which is insufficient to support a duress instruction.
United States v. Arthurs, 73 F.3d 444, 450 (1st Cir. 1996); see
also United States v. Bello, 194 F.3d 18, 27 (1st Cir. 1999).
Moreover, the inferred threat against "snitches" can be
disregarded. In a case of duress, the relevant threat is that
which "caused the actor to engage in conduct violating the literal
terms of the criminal law." Bailey, 444 U.S. at 409. Vázquez is
charged with violating the laws criminalizing the sale of cocaine,
not with failing to report those crimes.
Second, even if we were to accept the notion that Vázquez
might have construed an inferred threat against "snitching" to be
the equivalent of a threat of harm for not actively committing the
crime, such a subjective belief would not constitute a "well-
grounded" fear. Bello, 194 F.3d at 27. She needed to produce
evidence of threats that would have caused "a defendant of ordinary
firmness and judgment" to believe that she would be in immediate
danger should she not commit the criminal acts. United States v.
Castro-Gómez, 360 F.3d 216, 219 (1st Cir. 2004). The same
principle negates Vázquez's claim that the implicit threat had a
more powerful effect on her due to her past traumatic experiences
with firearms--our objective analysis does not permit consideration
of special factors unique to this particular defendant.
Finally, there was no evidence to suggest that Vázquez
lacked the opportunity to escape or frustrate any threat against
-28-
her. See Bello, 194 F.3d at 27. Vázquez testified that Soto "was
always around" at home and that the Ñetas had a presence "all over
the place," making it extremely difficult for her to turn Soto over
to the authorities. But even granting the improbable notion that
between December 5 and January 16, Vázquez did not have just a few
minutes in private when she could have contacted the police, there
is nothing to suggest that she could not have simply terminated her
romantic and professional relationships with Soto in order to
extricate herself from the drug-dealing business. Cf. Bailey, 444
U.S. at 410 (no duress defense is available "if there was a
reasonable, legal alternative to violating the law").
For these reasons, the evidence at trial, construed in
Vázquez's favor, could not have supported a finding of duress.
Accordingly, the district court did not err in refusing to instruct
the jury on the elements of the defense.
C. The Calculation of Vázquez's Guidelines Sentence
Finally, Vázquez claims that the district court
miscalculated her sentence under the United States Sentencing
Guidelines.10
10
At a sentencing hearing, the court may use evidence seized
in violation of a defendant's Fourth Amendment rights so long as
the police did not intentionally violate the Fourth Amendment in
order to increase the defendant's sentence. See United States v.
Larios, 593 F.3d 82, 87 (1st Cir. 2010); United States v. Acosta,
303 F.3d 78, 86 (1st Cir. 2002). Even if the district court
determines on remand that Vázquez's consent to the search of her
home was invalid and so suppresses the evidence obtained therein,
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The standard practice when imposing a sentence is for a
district court to use the Sentencing Guidelines to calculate a
recommended sentencing range for the defendant, and then to
consider whether a guideline sentence is appropriate in light of
the factors enumerated in 18 U.S.C. § 3553(a). United States v.
Zapata, 589 F.3d 475, 486 (1st Cir. 2009). The court may then
choose to vary from the Guidelines sentence if justified by the
particular circumstances of the case. See Gall v. United States,
552 U.S. 38, 46 (2007). Although defendants may appeal both the
procedure used to calculate their Guidelines sentencing range and
the overall substantive reasonableness of the sentence they
receive, see Zapata, 589 F.3d at 486, Vázquez challenges only the
calculation. On appeal, we review de novo the sentencing court's
interpretation of the Sentencing Guidelines and review for clear
error the court's findings of fact. United States v. Woodward, 277
F.3d 87, 91 (1st Cir. 2002).
Vázquez specifically challenges two of the variables in
her sentencing equation. First, she objects to the court's
attribution to her of approximately 100 grams of crack cocaine (86
grams more than the 14 grams she was convicted of selling to the
that decision will not impact the facts considered by the district
court in calculating Vázquez's sentence. Because the sentencing
calculation issues will arise either way, we can decide those
questions on this appeal, despite the fact that we are vacating one
of Vázquez's three counts of conviction and remanding the case for
further proceedings.
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police informant).11 Second, she disputes the court's finding that
a gun was possessed in connection with the charged conspiracy
(resulting in an upward adjustment of her offense level). Because
these findings were made for purposes of sentencing, the
prosecution had the burden to prove them by a preponderance of the
evidence. See United States v. Laboy, 351 F.3d 578, 582 (1st Cir.
2003) (drug quantity); United States v. Hoey, 508 F.3d 687, 691
(1st Cir. 2007) (facts central to upward adjustments in offense
levels). We take each of Vázquez's objections in turn.
1. The Amount of Crack Cocaine
Vázquez alleges that there was insufficient evidence that
the 100 grams of drugs existed, and even if they did, that they
took the form of crack cocaine rather than powder cocaine (which is
punished less severely under the Guidelines). The record, however,
amply supported the district court's calculation. As to the nature
of the product, Vázquez's conversations with the confidential
informant made clear that she and Soto were in the business of
selling crack cocaine, not powder. Vázquez was, after all,
convicted of selling crack. Nor does the fact that powder cocaine
was found in the search dictate a contrary conclusion, since powder
11
It is not entirely clear from the transcript of the
sentencing hearing whether the district court attributed to Vázquez
92, 96, 98, or 100 grams of crack cocaine. However, all four
quantities would yield the same base offense level of 26, which
covers the range of 28 to 112 grams. See U.S.S.G. § 2D1.1(c).
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cocaine is the principal ingredient used to cook crack cocaine.
See Kimbrough v. United States, 552 U.S. 85, 94 (2007). As for the
quantity, Vázquez herself referred to having run out of "100
grams," and needing to travel to New York to get more. The cash
found, minus the proceeds from the sale of a car, equaled the
estimated sales proceeds of approximately 100 grams of crack.
Small-time drug dealers rarely "author[]. . . formal
business plan[s] or keep[] meticulously detailed inventory
records." United States v. Sklar, 920 F.2d 107, 111 (1st Cir.
1990). Therefore, "in a case where cash is seized and where either
no drug is seized or the amount seized does not reflect the scale
of the offense, the sentencing court may estimate the quantity of
drugs with which Defendant was involved by converting cash to its
drug equivalent." United States v. Rios, 22 F.3d 1024, 1028 (10th
Cir. 1994). This method is commonplace in our circuit and in
others. See, e.g., United States v. Chandler, 534 F.3d 45, 50-51
(1st Cir. 2008); United States v. Sepulveda, 102 F.3d 1313, 1318
(1st Cir. 1996); United States v. Jackson, 3 F.3d 506, 510-11 (1st
Cir. 1993); see also United States v. Tokars, 95 F.3d 1520, 1541-42
(11th Cir. 1996) (collecting cases).
More broadly, Vázquez claims that she should not be held
responsible for uncharged drug sales and objects to the attribution
to her of any drugs beyond the 14 grams of crack she was convicted
of selling. While perhaps surprising to a lay person, sentencing
-32-
courts routinely take into account as "relevant conduct" drug deals
allegedly executed by defendants during the same approximate time
periods as their charged transactions even though no jury has found
the alleged deals to have occurred.12 The Sentencing Guidelines
endorse that approach: "[I]n a drug distribution case, quantities
and types of drugs not specified in the count of conviction are to
be included in determining the offense level if they were part of
the same course of conduct or part of a common scheme or plan as
the count of conviction." U.S.S.G. § 1B1.3, cmt. background; see
also United States v. Chuong Van Duong, 665 F.3d 364, 368 (1st Cir.
2012) ("Commentary to the guidelines is generally authoritative.").
Although "[n]ot every drug transaction undertaken by
every drug trafficker is necessarily linked in a meaningful sense,"
the sentencing court in this case was permitted to attribute
uncharged drug quantities to Vázquez so long as it found, by a
preponderance of the evidence, "a sufficient link between the acts
charged and those included for sentencing purposes." United States
v. Santos Batista, 239 F.3d 16, 21 (1st Cir. 2001) (quoting United
States v. Sklar, 920 F.2d 107, 111 (1st Cir. 1990)). Vázquez was
convicted both of conspiring to distribute crack cocaine between
12
See, e.g., United States v. Márquez, 699 F.3d 556, 558, 560-
61 (1st Cir. 2012); United States v. Barbour, 393 F.3d 82, 92 (1st
Cir. 2004); Laboy, 351 F.3d at 581; United States v. Santos
Batista, 239 F.3d 16, 21-27 (1st Cir. 2001); United States v.
Tabares, 951 F.2d 405, 410 (1st Cir. 1991); see also U.S.S.G. §
1B1.3(a)(2); id. at § 3D1.2(d).
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December 5 and January 16 and of actually distributing crack
cocaine to the informant on December 6, and so it was reasonable
for the sentencing court to consider as well her contemporaneous
sales of that same drug to other buyers. Cf. United States v.
Eisom, 585 F.3d 552, 557 (1st Cir. 2009) (listing factors to be
considered when deciding whether to include uncharged drug sales in
a Guidelines sentence calculation as "the nature of the offenses,
their timing, their commonalities, and the existence or non-
existence of overarching patterns").
For all of these reasons, the court did not clearly err
by attributing 100 grams of crack cocaine to Vázquez when it
calculated her Guidelines sentence.
2. Soto's Gun
Vázquez also challenges the district court's finding that
a gun was possessed in connection with the charged conspiracy,
increasing her base offense level by two (raising it to 28). See
U.S.S.G. § 2D1.1(b). Vázquez stresses that the gun in question
belonged to Soto, not to her, and that Soto only had possession of
the weapon in October 2007--two months before the charged
conspiracy had even begun.
As to who owned the gun, the Sentencing Guidelines
plainly state that in cases of "jointly undertaken criminal
activity," a defendant may be held responsible for "all reasonably
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foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity." U.S.S.G. § 1B1.3(a)(1)(B).
Vázquez does not dispute that she knew Soto possessed a gun.
Indeed, she testified at trial that a gun was "accessible" to Soto,
and that she had asked him not to keep the weapon in her house.
The fact that Vázquez never handled the gun herself does not
relieve her of responsibility for its foreseeable possession by a
co-conspirator in connection with their drug dealing venture.
As to chronology, the Guidelines also make clear that the
acts and omissions for which Vázquez was accountable included all
those that were "part of the same course of conduct or common
scheme or plan as the offense of conviction." See id. §
1B1.3(a)(2); see also id. § 3D1.2(d); id. § 2D1.1. That phrase has
been interpreted to be "broader than, rather than coterminous with,
the definition of a 'conspiracy' as that term of art is used in the
overall criminal law." David v. United States, 134 F.3d 470, 476
(1st Cir. 1998). Accordingly, "conduct can still be relevant,
though it may be outside the time frame of the charged conspiracy."
Barbour, 393 F.3d at 92.
In Vázquez's case, the government presented evidence that
she and Soto were engaged in the distribution of crack cocaine at
least as far back as October 2007, the same month that Soto
possessed the gun. Furthermore, even during the period of the
conspiracy for which Vázquez was convicted, she was present during
-35-
a conversation concerning Soto's preferences regarding the gun's
disposition and possible return to him. The sentencing court
indicated that it was well aware of the danger posed by a
boundaryless interpretation of the "relevant conduct" Guideline,
and yet it still determined that Soto's gun possession was part of
the same course of conduct as Vázquez's December through January
crack cocaine conspiracy. The court did not clearly err by
reaching that conclusion. See id.Therefore, we find no error in the district court's
calculation of Vázquez's Guidelines sentence.
III. Conclusion
First, we conclude that the district court erred by
denying Vázquez's motion to suppress without determining whether it
was reasonable for law enforcement to believe that New Hampshire
Probation and Parole had the authority to search without her
consent. On remand, the district court will need to determine
whether the facts as reasonably understood by the officers and
agents at the scene gave them the authority to search Vázquez's
home without consent. If so, the conviction on Count IV will stand
and Vázquez need not be resentenced. Otherwise, the conviction on
that count must be reversed, and Vázquez resentenced.
Second, we conclude that the district court committed no
error by denying Vázquez's request for a duress instruction.
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Finally, we conclude that the district court correctly
calculated Vázquez's recommended sentence under the Sentencing
Guidelines, although the district court will need to resentence
Vázquez if, on remand, it reverses the conviction on Count IV.
Accordingly, we affirm Vázquez's first two counts of
conviction and vacate her third count of conviction. We remand the
case for further proceedings consistent with this opinion.
So ordered.
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