Beruflich Dokumente
Kultur Dokumente
Before
Kayatta, Selya, and Dyk*,
Circuit Judges.
September 2, 2015
KAYATTA,
Circuit
Judge.
Ernesto
Monell
("Monell")
appeals from his conviction and sentence for one count of being a
felon in possession of a firearm and ammunition and for one count
of possessing with intent to distribute cocaine base.
His primary
sentencing.
After
careful
consideration,
we
affirm
the
Background1
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felon
in
possession
of
firearm
and
ammunition
in
to
suppress,
and
motion
in
limine
to
preclude
the
in
the
apartment
distribution.
In
and
that
he
possessed
the
handgun,
defense,
Monell
argued
that
the
government failed to establish that he, and not someone else living
in the apartment, possessed the gun, ammunition, and drugs.
To
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distribution;
(4)
the
potential
admission
of
rebuttal
Analysis
renews
his
challenge
to
the
search
warrant,
claiming that the warrant lacked probable cause, and that the goodfaith exception to the exclusionary rule should not apply.
His
256 F.3d 14, 16-17 (1st Cir. 2001). We review the district court's
factual findings for clear error.
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1.
On
Relevant Background
February
16,
2012,
Detective
William
Falandys
whose
information
confidential
attached
and
informant
was
set
incorporated
("CI-1")
forth
in
affidavit.
had
previously
Detective
The
first
provided
Within the previous 72 hours, CI-1 had seen "two rifle type
firearms against a wall in the apartment."
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police
officer,
Detective Falandys.
who
relayed
CI-2's
information
to
Falandys
also
listed
his
law
enforcement
The
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"the
evidence
here
was
thin,"
and
only
enough
for
"a
In response to further
The
district court determined that the search warrant was not supported
by probable cause because it authorized a search for evidence of
a crime for which probable cause was lacking: illegal possession
of firearms. In particular, the affidavit contained no information
that Monell was prohibited from possessing firearms.
- 7 -
The district
Analysis
the
warrant
affidavit
did
not
adequately
establish
the
record for CI-2, the mutual corroboration of the two CIs' stories-the location of the events, the physical description of "Ness,"
and the firearm-involved nature of the activity--served to bolster
the reliability of the information provided by each of them.
id.
("[C]onsistency
between
the
reports
of
two
See
independent
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believe
that
(1)
crime
has
been
committed
and
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The complication
that gives rise to the main thrust of this appeal is that the
warrant authorized a search only for "illegally possessed" weapons
and evidence that would show "Ness" had such weapons.
In this
respect, the warrant was less broad than it might have been.
diminished
breadth,
moreover,
was
product
of
That
Detective
the
confidential
informants
established
probable
cause
to
In short, the
Cf. Whren v.
In
assessing
an
the
validity
of
warrant,
we
generally
apply
See
to see why the officer's limitation on the types of guns and gunrelated evidence to be searched for should render the warrant
invalid.
Instead,
we
hold
that,
assuming
the
warrant
was
United
States,
338
U.S.
160,
176
(1949)
See Brinegar
(probable
cause
And
The
"trigger
Supreme
the
Court
has
exclusionary
instructed
rule,
police
that
in
conduct
order
to
must
be
135, 144 (2009); see also United States v. Leon, 468 U.S. 897,
920-21 (1984) (explaining that in most cases, "when an officer
acting with objective good faith has obtained a search warrant
from a judge or magistrate and acted within its scope . . . there
is no police illegality and thus nothing to deter").
No officer
could have had any reason to deliberately make the error made here.
The error arguably reduced the scope of the search from evidence
of any firearm that might have been used to assault or batter a
person to evidence of illegally possessed firearms only.
To be
tomorrow,
having
first
read
our
discussion
of
the
("If
police
have
probable
cause
to
search
for
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(White,
J.,
concurring
and
dissenting)).
And
the
In short, were we to
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not
justify
search
of
the
defendant's
apartment
for
The
Id. at
next
claims
that
the
prosecutor
exercised
his
equal
protection
rights
as
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articulated
in
Batson
v.
"The opponent of a
United
Our review
Id. at 115.
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Are you
district
court
invited
response.
After
accurately
there
are
number
of
police
officers,
many
of
whose
challenge:
I'm going to accept that as a facially neutral
reason for striking the juror. [Juror 19]
certainly in my judgment did express her views
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See
Snyder v. Louisiana, 552 U.S. 472, 477 (2008) ("[T]he trial court
must evaluate not only whether the prosecutor's demeanor belies a
discriminatory intent, but also whether the juror's demeanor can
credibly be said to have exhibited the basis for the strike
attributed to the juror by the prosecutor.").
We discern no basis
in the record for finding fault with the district court's on-theground determination.
Monell attempts to head off this conclusion by arguing,
based on two cases citing studies of racial profiling by law
enforcement, that allowing peremptory strikes on the basis of
negative interactions with police will disproportionately exclude
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African-American jurors.
Neither the Supreme Court nor this court has held that disparate
impact alone can sustain a Batson challenge, and Monell gives us
no reason to think that the law nevertheless plainly so provides.
See United States v. Charlton, 600 F.3d 43, 55 (1st Cir. 2010)
(Lynch, C.J., concurring) (citing Hernandez v. New York, 500 U.S.
352, 362 (1991) (plurality opinion)); see also United States v.
Perez, 35 F.3d 632, 635 (1st Cir. 1994) ("[A]n explanation may be
'race neutral' even though it does not produce uniform results
across racial lines."). Moreover, the challenge here did not arise
simply because the juror reported a negative interaction with
police from which one might infer an unwillingness to believe other
police officers.
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testimony
particular,
Monell
by
Federal
Rule
challenges
the
of
Evidence
following
702(a).
four
pieces
In
of
testimony,
but
not
the
fourth
part
about
the
10
The government argues that Monell did not preserve his objections
to any of the challenged parts of Detective Mercurio's testimony
because defense counsel merely stated "[o]bjection" without
articulating specific grounds. See Fed. R. Evid. 103(a)(1)(B).
We are not so sure that the grounds for the objection were not
"apparent from the context." Id. Monell filed a pretrial motion
in limine to exclude Detective Mercurio's testimony about "the
modus operandi of drug distribution on the basis of the evidence
seized" on Rule 702(a) grounds, which the district court denied
provisionally.
Although the motion in limine alone did not
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(1st Cir. 2009) (officer's expert testimony that guns are prevalent
among Brockton drug dealers and about practice of concealing or
swapping firearms was admissible); United States v. Lopez-Lopez,
282 F.3d 1, 14 (1st Cir. 2002) (use of GPS and cell phones to
import
drugs
by
sea).
Detective
Mercurio's
testimony
about
multiple cell phone use and using the names of others to rent
apartments was also directly relevant to address Monell's claim
that he only lived in the apartment sporadically, and that the
drugs and gun could have belonged to others residing in the
apartment.
Sebaggala, 256 F.3d at 65, we cannot say that the district court
abused its discretion here.
2.
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to
elicit
Detective
Mercurio's
opinion
about
drug
the
testimony
would
be
outside
Detective
Mercurio's
11
Because
Monell did not object on the basis he now presses on appeal, our
review is for plain error.
Duarte, 246 F.3d 56, 60 (1st Cir. 2001) (plain error review
requires, among other things, a "clear or obvious" error).
D.
ruling
that
the
government
could
introduce
recorded
prison
conducted
voir
dire
of
both
Connally
and
Nguyen
to
drugs
found
in
the
apartment.
During
voir
dire,
Nguyen
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He
Nguyen
stated that he and Monell were members of the Bloods street gang,
but denied knowing about Monell's role in the gang.
The district court deferred ruling on the admissibility
of Nguyen's testimony and any rebuttal evidence until later that
day. In the meantime, the government made it clear that, if Nguyen
testified, it would seek to introduce as rebuttal evidence an audio
recording of a June 15, 2013, prison conversation, recorded while
Monell was in pretrial detention, during which Monell seemingly
attempted to convince Connally, with whom he shared a child, to
take responsibility for the crime.13
13
court
notwithstanding
ruled
his
that
partial
it
would
exercise
admit
of
Nguyen's
his
Fifth
testimony
Amendment
The district
situation.
Monell:
That's not true. . . . It's
that I figured I would go to--I would do
what I would do for you if there's the
mathematics. This is about mathematics.
Like, last time I was out there, [Marvin]
said, "Listen, if we get pulled over, I'm
taking this for you."
That's what my
people do for me.
. . . .
Monell:
Like I said, end of the day,
you gotta do you now because if you don't
do it, I'm done. . . . 20 years? Do you
know what that is? You think one year
was a lot? You gotta do you now.
14
"may
including
open
the
door
photographs
apartment.
and
toward
other
gang-colored
gang-related
clothing
evidence,"
found
in
the
district
court
confirmed
this
inclination
after
Monell
appeal,
was
Monell
argues
inadmissible
as
that
the
irrelevant
recorded
and
prison
unfairly
prejudicial, see Fed. R. Evid. 402, 403, and that the district
court's ruling to the contrary violated his Sixth Amendment right
to call witnesses in his defense.
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The Supreme
Id. at 43.
several reasons why this must be so: (1) the lack of factual
context
made
it
difficult
for
reviewing
court
to
balance
(3)
the
government
ultimately
might
not
use
the
Id. at 41-42.
15
The Court in Luce used the term "in limine" "in a broad sense
to refer to any motion, whether made before or during trial, to
exclude anticipated prejudicial evidence before the evidence is
actually offered." Luce, 469 U.S. at 40 n.2. Monell's objection
to the government's anticipated rebuttal evidence fits within this
broad definition.
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We
to
would
rule
on
need
to
Monell's
make
too
claim.
many
speculative
First,
and
most
The
district
court
acknowledged
the
possibility
that
Nguyen's actual testimony might differ from his voir dire: "I, of
course, don't know how precisely this is going to play out. I'm
sort of guessing how this is going to play out . . . ."
Had Nguyen
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One would
Nguyen's voir dire, Monell might have decided that the jury would
not
believe
Nguyen,
regardless
of
the
government's
cross-
Thus, if
16
have run the risk that we would affirm the admission of the
rebuttal evidence, but parties must engage in this sort of calculus
all of the time.
59
(2000)
(discussing
the
choices
defendants
with
prior
Monell points
We think it fairer
that
defendant
could
avoid
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the
Luce
waiver
rule
by
sufficiently
definite
preview
of
the
defendant's
and
the
our
recent
decision
in
United
States
v.
Id. at 13-14.
Id. at 10.
The defendant did not call the expert, and on appeal sought to
argue that the district court violated his proffer agreement. Id.
at 14.
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Id. at 15.
Id.
Sentencing Challenge
Monell's final challenge is to his prison sentence.
The
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See 18
district
court
found
that
Monell
attempted
to
falsely
and
accept
responsibility
for
his
criminal
trial.18
Despite
the
sometimes
cryptic
nature
of
the
17
Monell
wanted
Connally
to
tell
the
truth
by
claiming
United States v.
that
Monell
persuaded
Nguyen
to
inferentially
accept
conversations;
Nguyen's
late
appearance
as
witness;
(emphasis added)
Given that Monell had a backup plan if Connally would not take the
fall, and that Nguyen later showed up with a not credible attempt
to take the fall for Monell, a reasonable inference could be made
that
Nguyen
possible.
a
clearly
was
"plan
See id.
B,"
even
if
competing
inference
is
erroneous
factual
finding
in
selecting
Monell's
sentence.
III.
Conclusion
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