USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-2309
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE V. ANDRADE, JR.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Dowd,* Senior District Judge.
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Miriam Conrad, Federal Defender Office, for appellant.
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James F. Lang, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for the United
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States.
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February 3, 1998
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*Of the Northern District of Ohio, sitting by designation.
BOUDIN, Circuit Judge. Jose V. Andrade, Jr., appeals
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from his conviction for conspiracy to engage without a
license in the business of dealing in firearms, 18 U.S.C.
371, 922(a)(1)(A) (1994), and for transporting firearms
without a license into his state of residence, id.
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922(a)(3). The facts pertaining to the issues raised on
appeal are largely undisputed. As the sufficiency of the
evidence is not an issue, we abbreviate the facts.
Andrade, a native of Boston, attended Jackson State
University in Jackson, Mississippi, during 1993 and 1994. At
the time, the authorities suspected Andrade of moving guns
illegally from Mississippi to Massachusetts. On December 16,
1994, Andrade--then in Boston for Christmas vacation--was
arrested and questioned in circumstances described below.
His family apartment and two others occupied by cousins were
searched on the same day based on search warrants or consent.
Andrade was released the same day, questioned at home on
December 19, and rearrested in March 1995.
On April 26, 1995, Andrade was indicted for conspiracy
to engage in gun dealings, together with Christopher Todd and
Terrance Smith, who were alleged to have purchased guns for
Andrade in Mississippi; as residents, it was easier for them
to purchase guns than for Andrade to do so. In January 1996,
the grand jury issued a superseding indictment against
Andrade, adding the second count (transporting firearms into
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Massachusetts). By that time, Todd had pled guilty, and
charges against Smith had been dismissed.
On May 8, 1996, the district court issued a decision
refusing to suppress statements that Andrade had made to the
authorities on December 16 and December 19 and refusing to
suppress the results of the searches of December 16. United
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States v. Andrade, 925 F. Supp. 71, 81 (D. Mass. 1996).
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Andrade was tried before a jury in May 1996, the trial
lasting about two weeks. The most damaging testimony was
given by Todd and Smith.
Both men gave detailed accounts of Andrade's requests to
them in 1993 and 1994 to buy handguns and his statements that
he planned to take them to Boston to sell. Todd and Smith
each described multiple occasions on which, in Andrade's
company, they purchased handguns for Andrade in different gun
shops and pawnshops, Andrade selecting the weapons and taking
them afterwards from Todd or Smith. Certain of the guns were
later recovered by the police in Boston.
Two pawnshop employees, from different pawnshops,
identified Andrade as an individual who accompanied Todd on
specific occasions. Michael Spinola, Andrade's first cousin
and friend, admitted saying that Andrade had told Spinola
that he was bringing guns from Mississippi to Boston to sell
and that Spinola had seen some of the weapons; but although
Spinola had given detailed testimony to this effect to the
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grand jury, at trial he described much of it as lies. There
is also testimony from a former friend of Andrade, who said
that in December 1994 after the search warrants were
executed, Andrade had asked the friend whether he would store
a suitcase of guns for Andrade.
Andrade sought to impeach government witnesses.
Although he did not testify himself, Andrade offered
testimony of Manuel Correia, who had been his roommate at the
University in Mississippi. Correia said that he had driven
from Jackson to Boston with Andrade three times, had seen or
helped Andrade pack, and had never seen any guns around.
Andrade's own statements, and some of the evidence seized
from the apartment searches, were introduced by the
government.
The jury retired to deliberate on May 29, 1996. The
next day it asked the court to answer a question about the
substantive count (transporting guns into Massachusetts); the
question and court's reply are at issue on appeal and are
discussed below. On May 31, Andrade was convicted on both
counts and later sentenced to 46 months in prison.
Andrade's first claim of error is that the district
court admitted statements that Andrade had made during his
December 16 interrogation at the police station. After his
arrest, Andrade was taken to an office in a Roxbury police
substation and handcuffed to a chair. There, Bureau of
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Alcohol, Tobacco and Firearms agent Daniel Campbell read
Andrade the Miranda warnings, see Miranda v. Arizona, 384
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U.S. 436, 478-79 (1966), and asked him if he understood his
rights; Andrade said that he did. A state police officer,
Francis Matthews, was also present.
Campbell told Andrade that he was under investigation
for gun shipments, and that the police had search warrants
for two premises connected with Andrade. Andrade said that
he had bought guns in Mississippi but that he was a collector
and not a dealer. Andrade also identified a third apartment
where he had stayed. Campbell then went to execute the
search warrants and obtained permission from the owner to
search the third apartment.
After Campbell left, an INS agent sought to question
Andrade about his immigration status. Andrade refused, so
Matthews told the agent to leave. A Boston police officer
then entered and, hearing Andrade tell Matthews that he was
not a firearms dealer, accused Andrade of lying; there was an
angry reply from Andrade, and Matthews told the detective to
leave. After some further discussion between them, Matthews
said to Andrade that he would not keep bothering Andrade if
he didn't want to talk, and Matthews then spent about two
hours on paperwork while Andrade slept in the chair.
At some point during the searches, police apparently
suggested to Andrade's sister that she talk to him by
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telephone; she did so, crying and pleading with Andrade to
talk to the police. When Campbell returned to the
substation, Andrade had been held for about four hours.
Campbell woke him and asked him if he remembered the rights
that had been read to him earlier. Andrade said that he did.
At this point, Campbell said that he knew that Todd and
Smith had purchased guns for Andrade in Mississippi. Andrade
replied that he knew Todd and Smith and was present when they
purchased guns. Andrade admitted that he obtained guns from
Todd and Smith but said that he had sold them in Mississippi
to three men from Houston, although he also admitted having
given a couple of guns to two men in Boston.
Andrade was released after offering to cooperate with
the police in retrieving weapons that the police thought were
still at large in Boston. Seeking this cooperation, Campbell
and a Boston Police detective visited Andrade at home on
December 19, where Andrade said that three men from Houston
would soon be arriving in Boston with weapons and drugs.
Andrade offered to introduce the men to Campbell. Andrade's
statements on both days were offered in evidence at trial.
In this court, Andrade does not claim that the
statements he made were involuntary. Instead, he says that
by repeated questioning police failed to honor his right to
remain silent under the Miranda doctrine, see Michigan v.
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Mosley, 423 U.S. 96, 104 (1975), and that when Campbell
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resumed questioning after completing the apartment searches,
there was no adequate waiver when Andrade made the statements
in the second interrogation. The district court held
otherwise, and we agree.
Miranda requires that the police warn a suspect in
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custody of his right to counsel and his right to remain
silent. If the police have failed to give the warnings and
obtain a waiver of rights, the statements are excluded, even
if otherwise voluntary. Where the suspect asserts that he
wants to consult with counsel, questioning must cease until
counsel is provided. See Edwards v. Arizona, 451 U.S. 477,
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484-85 (1981). But when a defendant invokes his right to
remain silent, Mosley makes clear that the police are not
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automatically forbidden from later resuming interrogation.
Andrade's initial statements to Campbell were
voluntarily made after full warnings. Andrade's later rebuff
of the INS agent and police detective were refusals to speak
to them but were not couched as a refusal to talk with
anyone. When Matthews ended his own questioning, it appears
that Andrade no longer wanted to talk with Matthews, but
neither did Andrade rule out the possibility of talking
later.
We see nothing wrong with Campbell's decision to resume
questioning of Andrade after the searches. A reasonable
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interval separated the two periods of questioning, see
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Mosley, 423 U.S. at 106, and there was no repeated attempt to
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reverse a refusal to talk through undue pressure. The
circumstances were quite different in United States v.
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Barone, 968 F.2d 1378 (1st Cir. 1992), where the defendant
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resisted questioning, was held for over 24 hours, was
interrogated four times before he began to discuss the crime,
and was twice intimidated by suggestions that he "would be in
substantial [physical] danger if he returned to Boston
without cooperating." Id. at 1385; see also id. at 1386.
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Whether Andrade's later statements reflected a waiver of
his right to remain silent is a closer issue. The problem is
that the Supreme Court has said, almost in the same breath,
that "mere silence is not enough" for a waiver, but that this
"does not mean that the defendant's silence, coupled with an
understanding of his rights and a course of conduct
indicating waiver, may never support a conclusion that the
defendant has waived his rights." North Carolina v. Butler,
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441 U.S. 369, 373 (1979). The waiver issue, it appears, must
be decided on the facts. See id. at 374-75.
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Here, we have no reason to doubt that Andrade knew that
he had a right to remain silent; at the outset of the second
round, Campbell reminded him of the earlier warnings, and
Andrade confirmed that he remembered. As for the intervening
events, Matthews' dismissal of the INS agent and police
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detective, when Andrade demurred, fairly conveyed the message
that Andrade was in charge of the decision whether and to
whom he would speak. By ending the initial round of
questioning, Matthews himself reinforced this message.
Andrade's subsequent admissions to Campbell were not
confessions wrested from a reluctant detainee. Andrade's
statements were partly consistent with Andrade's cover story
(selling the weapons to three men from Houston) and partly an
attempt to explain away the presence of some of the weapons
in Boston. In short, Andrade had a rational reason for
choosing not to remain silent. While a written waiver would
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have helped the government, it is not a mechanical
requirement.1
Andrade's next claim is that the trial court's
instructions on the first count--conspiracy to deal in
firearms without a license--set too low a scienter
requirement. 18 U.S.C. 924(a)(1)(D) provides that a number
of weapons offenses, including the offense of dealing without
a license, require that the proscribed conduct be willfully
undertaken. Andrade's counsel asked the court to instruct
the jury that this in turn required proof beyond a reasonable
doubt that "the defendant knew that Section 922(a)(1)(A)
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1Compare United States v. Christian, 571 F.2d 64, 66, 69
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(1st Cir. 1978) (no waiver where a defendant's signature on
an FBI waiver form showed that he had admitted being advised
of his rights, but conspicuously omitted his signature on the
line provided for a waiver of those rights).
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requires one who engages in the business of dealing in
firearms to obtain a dealer's license from the Secretary of
the Treasury."
The district court refused to give this instruction.
Instead, it told the jury that one acts willfully when he
intentionally commits acts proscribed by law "with knowledge
that his conduct is unlawful." The court said that knowledge
of illegality had to be proved beyond a reasonable doubt.
But it also instructed that the government did not have to
prove that the defendant knew of the specific statute that he
was charged with violating or that he intended to violate
that particular statute.
If case law from other circuits is put to one side, the
issue appears easy. The term "willful" is used in various
ways, but the standard definitions normally emphasize that a
defendant acted "with knowledge that [his] conduct is
unlawful," 1 L. Sand, J. Siffert, W. Loughlin & S. Reiss,
Modern Federal Jury Instructions 3A.01, at 3A-18 (1997).
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Willfulness is often required where a statute outlaws conduct
commonly thought to be lawful. In some measure, the
willfulness requirement reverses the usual rubric that
ignorance of the law is no defense. Just how much ignorance
may be needed is a different matter.
Nothing in the traditional willfulness instruction, nor
in its underlying purpose, requires that the defendant
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possess specific knowledge of the statutory provision that
makes his conduct unlawful. To impose such a requirement of
detailed knowledge of the firearms statutes (to which few
judges could pretend) would make an enforcement of the gun
dealer laws very difficult. And the requirement goes well
beyond what is needed to screen out an innocent who honestly
thought that his conduct was lawful.
Our view accords with the purpose of Congress in
adopting the willfulness requirement in the Firearms Owners'
Protection Act of 1986, Pub. L. 99-308, 100 Stat. 449.
Congress's concern was that, because of the nature of the
conduct and technicality of the statute, some offenses might
be committed by individuals who were unaware that their
conduct had been made criminal.2 Nothing indicates that
Congress was concerned with protecting individuals who knew
that their conduct was unlawful but might not be able to cite
chapter and verse as to which precise provision made it so.
The proponents of the willfulness requirement, to the
extent that we can discover their comments, said nothing to
suggest that the term was intended to go beyond its ordinary
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2The willfulness requirement applies to some gun crimes
and not others, and the dividing line is crudely drawn
between actions that anyone might expect to be unlawful, see,
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e.g., 18 U.S.C. 922(v), 924(a)(1)(B) (semiautomatic
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assault weapon crimes), and actions that might not always
appear unlawful, see, e.g., id. 922(e), 924(a)(1)(D)
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(shipping a firearm in interstate commerce without written
notice to the common carrier).
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meaning, that is, awareness that one's conduct is unlawful.
The only suggestions that the statute might require knowledge
of the "details" of the law came from opponents of the
amendment; given the incentive to exaggerate, such remarks
normally get little weight. NLRB v. Fruit & Vegetable
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Packers & Warehousemen, Local 760, 377 U.S. 58, 66 (1964).3
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The Second Circuit has squarely ruled that the
government need only prove that the defendant knew that his
conduct was illegal. United States v. Collins, 957 F.2d 72,
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76-77, cert. denied, 504 U.S. 944 (1992). Accord United
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States v. Allah, 130 F.3d 33, 38-41 (2d Cir. 1997); United
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States v. Bryan, 122 F.3d 90, 91 (2d Cir.), cert. granted,
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118 S. Ct. 622 (1997). The Seventh Circuit's decision in
United States v. Obiechie, 38 F.3d 309 (1994), largely points
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toward a standard of general knowledge of illegality,
although one sentence suggests that knowledge of the
licensing requirement may be required. See id. at 316.
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Several other circuits--including the Third and Eighth--
say generally that the defendant must have "knowledge of the
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3Compare 132 Cong. Rec. 6876 (1986) (statement of Rep.
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Hughes) (opponent's comments that the new statute would
require the defendant to know "what the law is, every detail
of the law. . . . [I]t would be a prosecutor's nightmare"),
with id. at 6861 (statement of Rep. Boehlert) (supporter's
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comment that the statute rejected mere knowledge of conduct
in favor of "some sort of criminal intent"). The scattered
and extensive legislative history is recounted in D. Hardy,
The Firearms Owners' Protection Act: A Historical and Legal
Perspective, 17 Cumb. L. Rev. 585, 604-07, 645-53 (1987).
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law," e.g., United States v. Hayden, 64 F.3d 126, 130 (3d
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Cir. 1995) ("the defendant must have acted with knowledge
that his conduct was unlawful"); United States v. Hern, 926
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F.2d 764, 767 (8th Cir. 1991) ("`willful' means an
intentional violation of a know legal duty"). But this
language could be read either to support Andrade or the
Second Circuit. And the matter is further confused because,
in purporting to disagree with the Second Circuit, several
such decisions misunderstand its position.4
Admittedly, two other circuits say that conviction
requires proof that the defendant was aware of the licensing
requirement itself, but we do not find these cases
persuasive. See United States v. Rodriguez, 1997 WL 797506,
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at *4 (5th Cir. Dec. 31, 1997); United States v. Sanchez-
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Corcino, 85 F.3d 549, 553-54 (11th Cir. 1996). Even
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decisions like Rodriguez, purporting to require specific
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awareness of the statute, dilute the requirement by inferring
specific knowledge from circumstantial evidence. See
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Rodriguez, 1997 WL 797506, at *4.
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Such evidence is likely to be good proof that the
defendant knew that his conduct was unlawful but very thin
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4The Third Circuit, for example, ascribes to the Second
Circuit the view that the government need prove only that the
defendant knew what he was doing. Hayden, 64 F.3d at 130
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n.6. The Second Circuit has, to our knowledge, never
expressed this view. See Collins, 957 F.2d at 77 (the
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evidence "demonstrate[d] that Collins understood that his
firearms sales violated the law").
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evidence that the defendant knew what statute made it so.
See Rodriguez, 1997 WL 797506, at *6 ("counter-surveillance
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operations," "unease about the sale," and "experience at `The
Bunker' and with firearms" gave defendant a "background from
which she should have been familiar with the firearms laws").
See also Obiechie, 38 F.3d at 316 ("An inference of knowledge
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could be drawn from the fact that [defendant] had listed
`gift' as his reason for purchasing the [guns] . . . after
having indicated that the first two purchases were for retail
sale."). Since juries are being allowed to convict on the
basis of such evidence, nothing is gained by instructing the
jury with language suggesting that the standard is higher
than it actually is.
Nor is Andrade's position supported, as he claims, by
Ratzlaf v. United States, 510 U.S. 135 (1994). Ratzlaf held
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that a currency structuring violation required "knowledge of
illegality [as] an element" to show willfulness, Bates v.
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United States, 118 S. Ct. 285, 290 n.6 (1997), which is just
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what the district court told the jury here. In Ratzlaf,
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knowledge of a specific statute (or something close to it)
was also required--not because of the willfulness requirement
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but because the statute itself required a "purpose of evading
the reporting requirements" of 31 U.S.C. 5313(a). See 31
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U.S.C. 5324. This additional wrinkle is not part of the
present case.
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In short, after surveying the cases, we feel on solid
ground in joining the Second Circuit position that it is
enough that the defendant be aware that his conduct is
unlawful. Such knowledge, needless to say, depends upon the
circumstances. In our case, the scale of Andrade's gun
smuggling activity, his denials of gun dealing in the police
station, and other evidence that he sought to hide the
weapons are powerful indications of his awareness. Andrade
himself makes no claim that the evidence is insufficient on
this score if the district court's instruction is upheld.
The remaining claim of error that we think necessary to
address concerns a supplemental instruction given by the
district court in answer to a question from the jury. The
second count charged Andrade with the substantive offense of
transporting firearms without a license into a state of
residence. Following the charge and a period of
deliberation, the jury submitted a written question to the
court as follows:
The jury requests a description of clarification of
the term "transport" as it is used in Page 22 of
the Jury instructions, i.e.: Does defendant have
to personally transport or deliver guns? Is (sic)
acceptance of said guns in Massachusetts constitute
transportation, especially in the phrase "to
transport into" or "receive"?
After consulting with the parties, the district court
told the jury that, given the government's theory of the
case, it would not be enough for the jury to conclude that
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the defendant "merely received or accepted guns in
Massachusetts."5 However, the court said that Andrade would
be guilty if he had caused "an agent, employee or other
associate" to bring the guns into Massachusetts. Andrade's
counsel, in turn, objected to this further supplemental
instruction.
The supplemental charge was legally correct. At common
law one is liable as a principal if one deliberately causes
or procuring another to perform a criminal act, 2 W.R. LaFave
& A.W. Scott, Jr., Substantive Criminal Law 6.6(a), at 126
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(1986), and the principle has been carried forward by 18
U.S.C. 2(b). Unlike aiding and abetting liability, id.
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2(a), there is no requirement that the intermediary be shown
to be criminally liable. Section 2(b) is not a separate
offense but a general principle of liability that applies
without any need for reference in the indictment. United
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States v. Sabatino, 943 F.2d 94, 99-100 (1st Cir. 1991).
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Andrade says that delivering the instruction after
closing arguments violated Fed. R. Crim. P. 30, which
requires that the court rule on requested instructions "prior
to their arguments to the jury." By its terms and, as a
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5In his original instructions, the trial judge had
already told the jury--consistent with the indictment--that
the charge against Andrade had as a necessary element that he
had transported the guns into Massachusetts. However,
earlier the judge had quoted the statute in full, and the
statute makes transportation or receipt criminal, if other
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conditions are met--which may explain the jury's question.
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matter of necessity, Rule 30 refers only to rulings on
instructions requested by counsel "[a]t the close of the
evidence or at such earlier time" as the court directs. Fed.
R. Crim. P. 30. The rule simply does not prescribe the
procedure for supplemental instructions after the jury has
retired. See United States v. Fontenot, 14 F.3d 1364, 1368
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(9th Cir.), cert. denied, 513 U.S. 966 (1994).
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The defense now says that at least it should have been
allowed to address the jury on this "new theory," pointing
out to it that there was no specific evidence that anyone had
transported the guns at Andrade's direction. We agree that a
refusal to permit further argument made necessary by a
supplemental instruction could amount to error. But here it
is enough to say that no such request to make further closing
argument after the supplemental instruction was made in this
case.
Further, the notion of prejudice is fanciful. Defense
counsel pointed out to the jury in her original closing that
there was no direct evidence showing Andrade's transportation
of the guns to Massachusetts. It had to be equally clear to
the jury that there was no direct evidence that Andrade had
asked an "agent, employee or other associate" to transport
the guns for him. To spell out the obvious would have added
nothing.
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At the same time, there was enough evidence for a jury
to conclude that somehow Andrade had managed to get
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Mississippi guns to Boston; among much else, Andrade had told
Todd and Smith that he planned to do so, and some of the guns
had in fact been recovered here. The government had no
obligation to prove the means of transportation. In context,
the supplemental instruction did little more than make this
clear to the jury, and properly so.
There is no need to address in detail Andrade's final
attack on the trial judge's instructions; taken as a whole,
we do not believe the charge tended to mislead or confuse the
jury. Although Andrade's arguments have not prevailed, we
think it fair to note that several of them are substantial
and that Andrade has been represented on this appeal with
singular skill and ingenuity.
Affirmed.
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