United States v. Lerebours

• Court: Court of Appeals for the First Circuit
• Decided: June 25, 1996
• Docket: 95-2317
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 95-2317



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   YVES LEREBOURS,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                    [Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                          Cummings* and Cyr, Circuit Judges.
                                             ______________



                                _____________________



               Bjorn  Lange, Assistant  Federal  Public  Defender,  Federal
               ____________

          Defender Office, for appellant.

               Jean B.  Weld, Assistant  United States Attorney,  with whom
               _____________

          Paul M.  Gagnon,  United  States   Attorney,  was  on  brief  for
          _______________

          appellee.


____________________



                                    June 25, 1996

                                 ____________________


____________________



          *  Of the Seventh Circuit, sitting by designation.



CUMMINGS, Circuit Judge.   Defendant Yves Lerebours was
                    CUMMINGS, Circuit Judge.
                              _____________



          convicted  for various  drug-related offenses.   He  raises three



          issues  in this  appeal:   whether  the  district court  properly



          refused  to dismiss based upon a Commerce Clause challenge to the



          criminal statute; whether the  district court properly refused to



          enter  a judgment  of  acquittal for  insufficient evidence;  and



          whether  the  defendant's  sentence  was  appropriate  under  the



          Sentencing   Guidelines.     We  affirm   the  district   court's



          conclusions.



                    In 1994  and 1995 the police  department of Manchester,



          New Hampshire, investigated  the sale of crack  cocaine and other



          narcotics in that city.  During September 1994 the police focused



          on drug activities at  309 Cedar Street in  Manchester.  In  that



          month a police  department detective  knocked at the  door of  an



          apartment on the third  floor of that address.   A woman directed



          him to the  driveway at the  rear of 315  Cedar Street.  At  that



          place he  spoke to a  Hispanic male whom  he later  identified as



          defendant  and said "I want  three."  Defendant  then entered the



          rear door and  several minutes later  handed three small  plastic



          baggies to a juvenile  who asked the detective to  accompany him.



          The detective purchased  three baggies from the boy for $60.  The



          contents consisted of .39 grams of crack cocaine.



                    On  September 19  the  same detective  returned to  309



          Cedar  Street.  Defendant was  inside an apartment  there and the



          detective again asked for "three."   The defendant instructed him



          to  wait downstairs in the alley where the detective bought three


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baggies  from defendant for $60.  The contents again consisted of



          .39  grams of crack cocaine.   Defendant told  the detective that



          the next time  he came for "crack," he should  go to the driveway



          in back of  315 Cedar Street,  ask for Tony,  and say that  Oshee



          sent him.  Defendant later testified that his nickname was Yoshi.



          In  January 1995  the same  detective identified a  photograph of



          defendant  as  the individual  selling him  crack cocaine  in the



          prior  September.   He also  identified defendant  in court.   He



          testified that he was trained to remember faces of suspects.



                    In  March  1995  another  detective of  the  Manchester



          police  department  was investigating  drug  sales  at 249  Cedar



          Street in Manchester.   On March 7 this detective  purchased five



          rocks of crack cocaine  for $100 from Henry Favreau at 290 Auburn



          Street.   On the  following day  Favreau took  him to  290 Auburn



          Street where the detective  was told "they were in  there cutting



          it up," and the detective then made a second purchase.   On March



          14 he made his third  purchase of five rocks from Favreau  at 290



          Auburn Street.



                    On March 15, after  obtaining a search warrant, several



          police officers  executed a search at 290  Auburn Street.  One of



          the  detectives sketched the apartment for  his police report and



          identified the rooms searched as including a kitchen, a northwest



          bedroom  and  a  northeast  bedroom.    A  brown  vinyl  box  was



          discovered above  the ceiling tiles in the kitchen that contained



          baggies, tissue, a cup,  a 13-inch-long Ginsu knife,  a six-inch-



          long  test tube, and scissors.  The knife, scissors and test tube


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contained  cocaine residue.    One of  the detectives  identified



          defendant as being present at 290 Auburn Street when the officers



          arrived to execute the search warrant.



                    Still  another  detective,  accompanied  by  his  drug-



          detection  dog, searched the northwest bedroom.  The dog began to



          bite and  scratch on one of  the two mattresses.   On lifting the



          mattress, the detective observed a number  of rocks consisting of



          1.88 grams  of  crack  cocaine.    During  the  search  defendant



          informed a police sergeant that  the northwest bedroom was shared



          by him and his girlfriend.



                    In  April  1995  defendant  was  indicted for  offenses



          involving  cocaine and cocaine base.   The indictment  was in six



          counts.   The first count charged a conspiracy to distribute such



          drugs  in 1994 and 1995 in violation  of 21 U.S.C.   846.  Counts



          two and  four charged their  distribution in September  1994, and



          counts  three, five and six  charged possession of  such drugs in



          September 1994 and March  1995.  Finally, counts two  through six



          alleged  violations of 21 U.S.C.   841(a)(1) providing that it is



          unlawful  "to manufacture,  distribute,  or dispense,  or possess



          with intent to manufacture, distribute, or dispense, a controlled



          substance."    Counts  three  and  five  were  dismissed  by  the



          government.



                    After  the  government  presented  its  case, defendant



          sought  acquittal  on  all counts  pursuant  to  Federal  Rule of



          Criminal Procedure 29.  He also asked that  the case be dismissed



          based upon  United States v. L pez,  __ U.S. __, 115  S. Ct. 1624
                      _____________    _____


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(1995).   The district judge commented that he would be surprised



          "if the federal drug  laws could ever be brought within the scope



          of those  category of laws  that cannot withstand  scrutiny under



          the commerce clause test."  Before denying dismissal, he added:



                      Cocaine trafficking is a  huge interstate

                      economic enterprise.  Congress could well

                      decide  to  regulate  that enterprise  by

                      prohibiting  the distribution  of cocaine

                      or  the possession of cocaine with intent

                      to  distribute.    The crime  necessarily

                      implicates    interstate   and    foreign

                      commerce   since    cocaine   cannot   be

                      manufactured and sold  solely within  any

                      one  state's  boundaries.    So  for that

                      reason  I'm  going  to  deny  your  L pez
                                                          _____

                      motion.



                    Elizabeth Rivera, defendant's  fianc e, and her  mother



          Margarita then offered alibi  testimony, obviously disbelieved by



          the jury, concerning events  on September 16, 1994, and  in March



          1995.   Defendant again moved for acquittal  under Rule 29 of the



          Federal  Rules  of Criminal  Procedure  and  for dismissal  under



          United States v. L pez, but both motions  were denied.  After the
          _____________    _____



          three-day jury trial defendant was found guilty on counts one and



          four and not guilty on counts two and six.



                    Both  sides  filed  sentencing  memoranda.    Defendant



          requested that he be  held accountable for only the  .39 grams of



          cocaine base  that was the subject  of count four.   Since he was



          acquitted under counts two and six, he argued that  he should not



          be held accountable  for the drugs  distributed on September  16,



          1994,  and March  15, 1995.   In  turn, the  government requested



          accountability for a total drug quantity of 4.15 grams of cocaine



          base.     Based  upon   that  amount,  the   revised  presentence



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investigation report  computed a  base  offense level  of 24  for



          defendant.



                    The district judge  decided that the following  amounts



          were attributable to defendant:  .37 grams on September 16, 1994;



          .39 grams  on September  19, 1994;  and 1.88  grams on  March 15,



          1995, or a total of 2.64  grams.  The judge explained his rulings



          as follows:



                      . . . just because the jury found him not

                      guilty,  [sic]  that March  event doesn't

                      mean that  I have  to find that  he [sic]

                      hasn't established by a  preponderance of

                      the  evidence that  that cocaine  is his.

                      . . .



                      I have no difficulty  in finding that the

                      .37 [sic] grams on 9/16, the .39 grams on

                      9/19   that  was   the  subject   of  the

                      conviction, and the .188 [sic] grams that

                      was the subject of the acquittal in March

                      are all part of the same conspiracy; that

                      the   defendant   did   engage   in   the

                      transactions on  9/16 and 9/19,  and that

                      the   crack   cocaine  found   under  the

                      defendant's bed was  his cocaine and  was

                      possessed  by  him  with  the  intent  to

                      distribute as part of the same conspiracy

                      that led to the conspiracy conviction and

                      the conviction for the 9/19 sale.



                      With respect to  the 9/16 transaction,  I

                      found  the  officer's  testimony   to  be

                      persuasive   and    convincing,   and   I

                      personally  have no  doubt about  in fact

                      that that was the defendant who made that

                      sale.



                      And with respect to the 1.88 grams  found

                      on  March 15,  I  have  no difficulty  in

                      finding   by   a  preponderance   of  the

                      evidence    that    that    cocaine    is

                      attributable to the defendant and that it

                      is related to the count of conviction.  I

                      just  find   completely  implausible  the

                      speculation that someone  else, like  Mr.


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Luna, would  come in and put  the cocaine

                      where it was found.



                      So for  those reasons I am  going to find

                      attributable to the  defendant .37  grams

                      on  9/16,  .39  grams on  9/19,  and 1.88

                      grams on 3/15.



          Defendant  was sentenced  to  57 months'  imprisonment and  three



          years of supervised release.



               Denial of Motion to Dismiss Under United States v. L pez
               Denial of Motion to Dismiss Under United States v. L pez
                                                 _____________    _____



                    As the  Seventh Circuit  explained in United  States v.
                                                          ______________



          Bell,  70  F.3d 495,  497 (7th  Cir.  1995), L pez  challenges to
          ____                                         _____



          various   statutes   have  almost   invariably  failed.1     More



          importantly, three courts of  appeals have already rejected L pez
                                                                      _____



          constitutional attacks on the Comprehensive Drug Abuse Prevention



          and Control Act of 1970, 21 U.S.C.   801 et seq.   Thus in United
                                                   _______           ______



          States v. Leshuk, 65 F.3d  1105 (4th Cir. 1995), the court  noted
          ______    ______



          that  L pez  reaffirmed  the  principle  that  "where  a  general
                _____



          regulatory  statute  [like  the  one here]  bears  a  substantial



          relation  to commerce,  the  de minimis  character of  individual



          instances  arising under that statute is of no consequence."  Id.
                                                                        ___



          at 1112.   In United States v. Brown, 72 F.3d 96 (8th Cir. 1995),
                        _____________    _____



          in upholding a  conviction for use  of a firearm  during a  drug-



          trafficking  offense, the court relied on  Leshuk for rejecting a
                                                     ______



          L pez  Commerce  Clause  challenge  and noted  that  the  statute
          _____


____________________



          1  See,  e.g., United States  v. Kirk, 70  F.3d 791, 794-95  (5th
             ___   ____  _____________     ____

          Cir. 1995), reh'g  en banc granted,  78 F.3d 160 (Mar.  5, 1996);
                      ______________________

          United  States v.  Bishop, 66  F.3d 569,  575-89 (3d  Cir. 1995),
          ______________     ______

          cert. denied, __ U.S. __, 116 S. Ct. 681 (1995).
          ____________



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involved here had been found constitutional.  Id. at 97.   Accord
                                                        ___          ______



          United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995).
          _____________    ______



                    Finally, defendant argues that  this case amounts to an



          abridgment  of the  reservation of  police powers  to  the states



          under  the Tenth  Amendment.   Such an  argument was  rejected in



          United  States  v. Owens,  996 F.2d  59,  60-61 (5th  Cir. 1993),
          ______________     _____



          because courts will  not strike  down a statute  under the  Tenth



          Amendment where Congress was within its powers under the Commerce



          Clause  to enact the statute.   As we  have already acknowledged,



          Congress had  authority under the Commerce  Clause to criminalize



          the conduct under the statutes involved here.



                             Sufficiency of the Evidence
                             Sufficiency of the Evidence



                    Defendant contends that  he should have  been acquitted



          on counts one and four because of  insufficient evidence, stating



          that the affidavit for  the search warrant for 290  Auburn Street



          on  March 15,  1995,  did   not  mention  him  and   because  the



          detective's identification  of defendant as the  person from whom



          he   purchased  crack   cocaine  on   September  19,   1994,  was



          uncorroborated.



                    As to  count one, it  is immaterial that  the affidavit



          for  the March  15, 1995  search  at 290  Auburn  Street did  not



          mention defendant because detective Boles identified him as being



          present when the officers arrived  to execute the search  warrant



          and  defendant informed one of the police officers that he shared



          the northwest bedroom in  that apartment where a number  of rocks



          of crack cocaine were found.


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Count  four, covering  the distribution  of cocaine  on



          September 19,  was supported by  a detective's testimony  that he



          requested  three  rocks  of   cocaine  and  purchased  them  from



          defendant on September 19, 1994, in the alley outside defendant's



          apartment.   Likewise, count one  related to the  events of March



          15, 1995.  There was adequate evidence to support the convictions



          on counts  one and four.  Thus the district court properly denied



          defendant's Rule 29 motions.



                                      Sentencing
                                      Sentencing



                    It  is  immaterial that  defendant  was  assessed crack



          quantities  underlying  counts two  and  six,  for which  he  was



          acquitted, because they were included in conspiracy count one, on



          which he was convicted.  We so ruled in United  States v. Ovalle-
                                                  ______________    _______



          M rquez,  36 F.3d 212, 222-24  (1st Cir. 1994),  cert. denied, __
          _______                                          ____________



          U.S. __, 115 S.  Ct. 1322 (1995), and United  States v. Mocciola,
                                                ______________    ________



          891 F.2d 13, 16-17 (1st Cir. 1989).



                    Here defendant was convicted of  conspiracy with others



          to distribute and possess  with the intent to distribute  a total



          of 2.66  grams of crack cocaine, as alleged in count one.  As the



          district judge  found, the  drugs involved  in the  September 16,



          1994,  and March  15, 1995,  incidents were  parts of  the scheme



          underlying  the conspiracy count.   The judge also  found all the



          cocaine was part of the same conspiracy charged in count one,  so



          that it was  proper for  him to aggregate  them to determine  the



          base offense level.  Ovalle-M rquez, 36 F.3d at 222-224; U.S.S.G.
                               ______________



            1B1.3(a)(1)(B).


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For  the foregoing reasons, defendant's convictions and



          sentence are affirmed.
                       ________


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