UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-2151
UNITED STATES,
Appellee,
v.
JOSE ROBLES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Heidi E. Brieger, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
John L. Roberts, by appointment of the Court, for appellant.
January 20, 1995
CAMPBELL, Senior Circuit Judge. Defendant-
Appellant Jose Robles appeals from his conviction after a
jury trial in the district court and sentence for cocaine-
related offenses. We affirm in all respects.
I. BACKGROUND I. BACKGROUND
A. Facts A. Facts
Viewed in the light most favorable to the
government, see United States v. Argencourt, 996 F.2d 1300,
1303 (1st Cir. 1993), cert. denied, 114 S. Ct. 731 (1994), a
reasonable jury could have found the following facts. In
February 1992, Robles began working as a houseman at the
Bostonian Hotel in Boston, Massachusetts. During his
employment there, Robles befriended another houseman, co-
defendant Marlio Motta. Motta then resided at 59 Blossom
Street, Chelsea, Massachusetts, but he was a citizen of
Colombia, where his family resided.
In the fall of 1992, Robles and Motta agreed to
import cocaine from Colombia to Boston by having Motta's
family in Colombia conceal the cocaine within a metal
cylinder and then ship the cylinder to Boston. Around
November 1992, Robles and Motta invited Robles' cousin,
Orlando Figueroa, to 35 Westwind Road, Dorchester,
Massachusetts, an apartment leased by Robles' girlfriend,
Elizabeth Diaz, and occupied, at least occasionally, by
Robles. Robles and Motta asked Figueroa if he would help
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them retrieve the cylinder by putting his name on the
shipping papers as the consignee. They told Figueroa that
they needed someone like Figueroa with an
identification card in whose name the shipment could be sent.
Robles and Motta told Figueroa that once the cocaine arrived
in the United States, they wanted him to appear at the air
cargo facility at Boston's Logan Airport, show his
identification to Customs officials to prove that he was the
consignee, and then take custody of the package. In return
for his assistance, Robles and Motta offered to pay Figueroa
a total of $10,000. Figueroa agreed to take part as
requested.
On or about December 10, 1992, the cylinder,
shipped via Challenge Air Cargo from Bogota, Colombia via
Miami, Florida arrived at the Continental Airlines Air Cargo
Facility at Logan Airport, Boston, for a consignee identified
on the shipping documents as "Orlando Figueroa" of 29
Westwind Road, Dorchester, Massachusetts. This was not
Figueroa's address, but rather the address of Jose Robles'
family. The cylinder was contained within a wooden crate.
At about 1:00 p.m. on December 14, 1992, United
States Customs Senior Inspector Lawrence Campbell, assigned
to the Contraband Enforcement Team, conducted a routine
inspection of the crate at Logan Airport. He noticed that
the crate was coming from a country that he recognized as a
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source country for narcotics. Campbell also took note that,
according to the Challenge Air Cargo airway bill, the crate
contained a metal machine part stated to be without
commercial value, and shipped without insurance. In
addition, Campbell noticed that the machine part was destined
for a residential, rather than a commercial, address.
Finally, Campbell determined that the shipping costs ($212)
exceeded the declared Customs value ($150) of the item.
That same afternoon, Motta, Robles, and Figueroa
drove to Logan Airport in Motta's girlfriend's car to pick up
the package. Robles and Figueroa entered the Continental
Airlines terminal at approximately 4:45 p.m., and Robles
inquired of a Continental Airlines employee, Robert Bennett,
about the status of the package. Mr. Bennett told Robles
that the shipment had arrived, but that it was not yet ready
to be released. Mr. Bennett told Robles to return to pick it
up the following day.
Meanwhile, in light of what he considered to be
suspicious circumstances surrounding the shipment of this
package, Campbell decided to conduct further inspection. The
crate was removed to the Customs Facility at Sealand in South
Boston, Massachusetts in the late afternoon of December 14.
There it was subjected to x-ray testing, which proved
inconclusive. A drug detection dog who sniffed the crate did
not alert to the presence of narcotics. Campbell then
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manually examined the cylinder by tapping it on both ends,
which sounded solid, and then by tapping it in the middle,
which, he testified, produced a completely different,
"hollow" sound. He then decided to drill into the cylinder
to determine whether there was contraband concealed within.
He first attempted to drill into the ends of the cylinder,
but without success; he stated that the drill was "burning
more than anything else." However, when he attempted to
drill into the center of the cylinder, the drill bit "went
straight through" and emerged covered with a white powdery
substance. A field test of the substance was positive for
the presence of "some sort of opium alkaloid."
Customs agents then transported the cylinder to a
machine tool shop in Norwood, Massachusetts for further
examination. At approximately 8:00 p.m. on December 14, they
succeeded in drilling a one-inch hole into the center of the
cylinder. Over the next several hours, Customs agents
extracted approximately 2.75 kilograms of cocaine from the
cylinder, finally completing the job at about 1:00 a.m. on
December 15. In addition, they removed a piece of carbon
paper from the cylinder. From experience, they knew that
carbon paper was commonly used by smugglers in order to
interfere with x-ray examinations. They then poured flour
and a small amount of cocaine back into the cylinder, sealed
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it, repainted it, and repacked it into its shipping crate in
orderto attempt acontrolled delivery1 tothe listed consignee.
On the morning of December 15, Customs agents
transported the crate containing the cylinder to the
Continental Airlines Air Cargo facility. That same morning,
either Robles or Figueroa contacted a friend, Luis Serrano,
and asked him to drive Robles and Figueroa to the airport to
retrieve a package. Robles, Figueroa, and Serrano arrived at
the Continental terminal at approximately 10:55 a.m. Robles
and Figueroa entered the building, and Robles inquired at the
counter about the status of the package. Mr. Bennett told
Robles that the package would be available for release at
1:00 p.m. that afternoon.
At approximately 1:20 p.m., Robles, claiming to be
Figueroa, called the Continental Air Cargo facility and asked
to speak with the manager. Special Agent Protentis of the
United States Customs Service, acting in an undercover
capacity, took the phone call. Robles, who again identified
himself as Figueroa, was informed by Protentis that the
package was ready to be picked up. He informed Robles that
Robles was first required to bring the necessary paperwork to
1. United States Customs Special Agent Timothy N. Gildea testified that a controlled delivery "is when we would allow a package with contraband or a package that had contained contraband to go to the importer so that we can trace where the package is going to and try to identify the co- conspirators."
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the Customs officials in order to secure the package's
release. Once Customs had cleared the package, he said
Robles should return to the Continental Air Cargo facility
with the paperwork, and then the package would be released to
him.
Shortly thereafter, Robles called Motta at the
Bostonian Hotel. Motta told Robles to hail a taxi, and, with
Figueroa, pick up Motta at the Bostonian Hotel. Robles did
so. After Robles and Figueroa picked up Motta at the
Bostonian, they took the taxi to the Continental freight
facility at Logan, arriving at about 3:00 p.m.
Robles and Figueroa entered the facility, leaving
Motta in the taxi. Robles spoke to the Continental
employees. He was told by them what he needed to do to clear
the package through Customs. He and Figueroa then returned
to the cab, which drove them to the Customs Office. At the
Customs Office, Robles and Figueroa obtained clearance for
release of the package, which they then took back to
Continental in the cab.
Once back inside the Continental freight facility,
Robles arranged with Continental employees for the package to
be brought to the cab. After loading the crate into the cab,
Robles, Motta, and Figueroa left Logan Airport. Customs
Agents intended to seize the crate and the cab's passengers
following a "controlled delivery." However, the agents lost
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sight of the taxi at some point in the Callahan Tunnel.
Figueroa testified that after leaving Logan Airport the cab
traveled to the rear of 35 Westwind Road, where Robles and
Motta unloaded the crate into the apartment.
Prior to the shipment of the package, sometime in
December 1992, Motta had asked Jeff MacDonald, an engineer at
the Bostonian Hotel, whether he could borrow a "Sawzall"
power saw from the hotel. MacDonald agreed to lend the saw
to Motta.
After Robles and Motta unloaded the crate into the
apartment at 35 Westwind Road, they attempted to use the saw
to cut through the cylinder, but were unable to get the saw
to operate properly. Unable to get to the cocaine, Robles,
Motta, and Figueroa left the apartment.
Also on December 15, Agent Gildea obtained a search
warrant to search for cocaine and drug paraphernalia at 29
Westwind Road, the home of Robles' parents, and the home to
which the crate was addressed. The search was carried out at
approximately 5:30 p.m., but nothing incriminating Robles was
found. On December 17, 1992, following conversations with
Figueroa, law enforcement agents obtained a search warrant
for the premises at 35 Westwind Road. During the execution
of that search warrant on the same day, the agents seized the
crate and the cylinder, which had been placed in a utility
closet on the first floor of the apartment. In addition, the
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agents found a tool box made of red-painted metal and labeled
with the words "HEAVY-DUTY SAWZALL" in an upstairs utility
closet. Inside the sawzall box was the power saw itself, as
well as an invoice indicating that the owner of the sawzall
was the Bostonian Hotel in Boston, Massachusetts.
Also on December 17, law enforcement officials
obtained and executed a search warrant for the premises at 59
Blossom Street, Motta's residence. During the execution of
that warrant, law enforcement agents seized Motta's Columbian
passport and other Columbian identification cards; a
Continental Airlines Air Cargo bill for the metal cylinder
shipped from Columbia to Boston; and an address book
containing, among other entries, entries for "Orlando
Figueroa, 29 Westwind Rd., Dorchester, Mass. 02125," and
"Jochy 287-1014" (the telephone number for 29 Westwind Road).
B. Proceedings Below B. Proceedings Below
Robles was indicted by a federal grand jury on
April 15, 1993. The indictment charged him with conspiracy
to import cocaine, in violation of 21 U.S.C. 963 and
952(a); importation of cocaine and aiding and abetting, in
violation of 21 U.S.C. 952 and 18 U.S.C. 2; conspiracy to
possess cocaine with intent to distribute, in violation of 21
U.S.C. 846; and attempt to possess cocaine with intent to
distribute and aiding and abetting, in violation of 21 U.S.C.
846 and 18 U.S.C. 2.
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On July 27, 1993, the district court denied Robles'
motion in limine seeking to exclude evidence of Robles' prior
drug activities. In addition, the district court denied
Robles' motions to suppress certain physical evidence. With
respect to the cocaine seized from the cylinder, the court,
without a hearing, ruled that Customs agents had conducted a
routine border search, and accordingly had lawfully searched
the cylinder without a warrant. With respect to the tool box
and power saw seized from 35 Westwind Road, the court, after
a brief hearing, ruled that Robles had standing to challenge
the warrant because his girlfriend lived in the apartment.
However, it also ruled that the tool box and power saw were
lawfully seized because they were in plain view during the
execution of a valid search warrant.
On July 28, 1993, the court denied Robles' motion
for a judgment of acquittal. On July 30, 1993, after a five-
day trial, the jury convicted Robles on each count of the
indictment, and the court imposed sentence on September 24,
1993. Judgment was entered on October 7, 1993, from which
this appeal was taken.
II. II.
A. Denial of a Motion to Suppress Evidence Seized as the A. Denial of a Motion to Suppress Evidence Seized as the Result of a Nonroutine, Warrantless Border Search Result of a Nonroutine, Warrantless Border Search
Robles contends that the district court erred in
denying his motion to suppress evidence seized as a result of
the drilling search of the metal cylinder. He concedes that
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Logan Airport was the functional equivalent of an
international border, and that the agents were entitled to
conduct a routine border search of the cylinder without a
warrant, probable cause or any level of suspicion. But
Robles contends that drilling into the cylinder went beyond
the limits of the usual routine border search. To justify
such a nonroutine search, there had to be reasonable
suspicion. Because reasonable suspicion was absent, Robles
continues, the drilling was improper. To hold otherwise, he
urges, would be to subject "international cargo to
destructive searches, in cases without reasonable suspicion
and exigent circumstances, and absent review by an impartial
judicial officer."
The government concedes that drilling a hole in the
cylinder was nonroutine. The government also accepts that
damaging border searches of this nature cannot be conducted
except upon a showing of reasonable suspicion. But the
government insists that the suspicious circumstances
surrounding the crate and the enclosed cylinder fully met
that standard.
Where, as here, the district court made no findings
of fact with respect to its denial of the motion to suppress,
this court reviews the record de novo. United States v.
Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993); United States v.
Sanchez, 943 F.2d 110, 112 (1st Cir. 1991). We are not bound
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by the district court's reasoning, and will affirm if the
ruling below is supported by any independently sufficient
ground. Garcia, 983 F.2d at 1167; United States v.
McLaughlin, 957 F.2d 12, 16 (1st Cir. 1992); United States v.
Bouffard, 917 F.2d 673, 677 n.7 (1st Cir. 1990).
It is well-settled, as the parties all concede,
that routine border searches, conducted for the purposes of
collecting duties and intercepting contraband destined for
the interior of the United States, do not require reasonable
suspicion, probable cause, or a warrant. United States v.
Montoya de Hernandez, 473 U.S. 531, 537-38 (1985); see also
United States v. Ramsey, 431 U.S. 606, 616-619 (1977)
(routine border searches are reasonable within the meaning of
the Fourth Amendment); United States v. Braks, 842 F.2d 509,
511 (1st Cir. 1988) (routine border searches not subject to
any requirement of reasonable suspicion).
The rule as to nonroutine border searches is,
however, different. There must be reasonable suspicion
before a search can lawfully be conducted. In the Braks case
we listed factors used to determine what degree of
invasiveness or intrusiveness would render a border search
nonroutine. These factors include "whether force is used to
effect the search." Braks, 842 F.2d at 512.
Drilling into a closed, metal cylinder, as here,
was using "force . . . to effect the search." Id. Cf.
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United States v. Chadwick, 532 F.2d 773, 783 (1st Cir. 1976)
(breaking into locked suitcases), aff'd, 433 U.S. 1 (1977),
cited in Braks, 842 F.2d at 512 n.9. As Customs Inspector
Campbell conceded, drilling was "for the most part" unusual,
and "not an everyday occurrence." We have little difficulty
concluding that drilling a hole into the cylinder was not a
routine search.
Customs agents, as already said, must have a
"reasonable" level of suspicion before conducting such a
nonroutine border search. To satisfy the reasonable
suspicion standard, agents must "demonstrate some objective,
articulable facts that justify the intrusion as to the
particular person and place searched." United States v.
Uricoechea-Casallas, 946 F.2d 162, 166 (1st Cir. 1991)
(citing Braks, 842 F.2d at 513).
We agree with the government that this standard was
met here. The shipping documents, which the agents examined,
indicated that the shipment contained a metal machine part of
no commercial value, coming without insurance from Columbia
a known source country for narcotics to an apparent
residence, rather than to a business. From the documents it
appeared that the shipping cost exceeded the cylinder's
declared value. Tapping the cylinder in the middle produced
a "completely different" hollow sound from the way tapping
the solid ends had sounded, suggesting the presence of a
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hollow compartment within. Quite obviously, such a
compartment could be used to transport contraband, as proved
to be the case. Given the cylinder's lack of commercial
value, its residential destination, and the fact that to ship
it cost more than its value, the agents reasonably suspected
that the hollow cylinder was not being shipped for its own
sake but rather was being employed to import contraband from
Columbia into this country. The above objective facts, which
the agents learned in the course of their routine preliminary
search, were sufficient to justify the more intrusive search,
by drilling, which the Customs officials then initiated.2
We affirm the district court's denial of the motion
to suppress evidence derived from the search and seizure of
the cylinder.
B. Denial of a Motion to Suppress Evidence Seized without a B. Denial of a Motion to Suppress Evidence Seized without a Warrant from a Home Warrant from a Home
Robles next contends that the denial of his motion
to suppress a tool box and the power saw within items
seized from his girlfriend's home at 35 Westwind Road was
error. Our above holding defeats Robles' first reason
2. Robles cites United States v. Cardona-Sandoval, 6 F.3d 15
(1st Cir. 1993) (involving a destructive, "stem-to-stern" search of a pleasure craft) in support of his argument that none of the facts mentioned above were objective facts. We
disagree. The written statements in the shipping documents, the country of origin of the cylinder, and the sounds produced by tapping on the cylinder were all objective, and were sufficient to raise a reasonable suspicion at the close of the preliminary routine inspection.
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offered in support of this claim namely, that since the
warrantless border search which provided probable cause for
the search of the apartment was supposedly illegal, any
evidence seized as a result was "fruit of the poisonous
tree." As just held, the search of the cylinder was not
illegal. Robles further argues, however, that seizure of the
tool box and power saw was illegal because neither item was
mentioned in thewarrant tosearch the 35Westwind Roadpremises.
The search warrant authorized seizure of (1) a
wooden crate addressed to Figueroa; (2) the cylinder; (3) all
papers relating to the shipping of the crate and the
cylinder; (4) all papers or photographs relating in any way
to the defendants; and (5) all documents evidencing dominion
or control of the premises. Nothing was said as to a tool
box or saw. The government contends, however, that the tool
box, with the saw within, was evidence in "plain view" for
which a warrant was not required.
Law enforcement agents may seize evidence in plain
view during a lawful search even though the items seized are
not included within the scope of the warrant. Coolidge v.
New Hampshire, 403 U.S. 443, 465 (1971); United States v.
Caggiano, 899 F.2d 99, 103 (1st Cir. 1990); United States v.
Rutkowski, 877 F.2d 139, 140 (1st Cir. 1989). To fall within
the "plain view" doctrine, a seizure must satisfy two
criteria: first, the officers' presence at the point of
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discovery must be lawful, and second, the item's evidentiary
value must be immediately apparent to the searchers. United
States v. Giannetta, 909 F.2d 571, 578 (1st Cir. 1990).3
The seizure of the tool box meets these criteria.
The agents were lawfully on the premises at 35 Westwind Road,
pursuant to a valid search warrant. Once there, the agents
were authorized to look within the utility closet (where the
tool box was found) in order to search for papers,
photographs and other documents. As the Supreme Court has
noted:
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.
United States v. Ross, 456 U.S. 798, 820-21 (1982) (footnote
omitted). Finally, the tool box was labelled on its side
with the words "HEAVY-DUTY SAWZALL." Since the officers knew
that cocaine had been concealed within a heavy metal
cylinder, which must perforce be opened in some manner in
3. Courts also historically have required that the discovery of the item be inadvertent -- i.e., that the searching agents not suspect in advance that they would find the item. However, the Supreme Court has stated that "inadvertence" is not a necessary condition of a plain view seizure. See
Horton v. California, 496 U.S. 128, 130 (1990).
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order to remove the cocaine, the evidentiary value of a saw
capable of performing that task was readily apparent.
The box was thus properly seized as evidence in
plain view. As Ross, supra, makes clear, there was also no
unlawfulness in opening the tool box to search its
contents.4 Quite apart from its own evidentiary value, the
box was a possible repository for items mentioned in the
warrant, such as papers, documents and photographs, of which
seizure was authorized. Just as the agents could open
closets, chests, doors and other containers, in order to look
for these, they were authorized to open the box for that
purpose. Once the box was opened, the evidentiary value of
the power saw found within was obvious.
We find no error in the district court's denial of
Robles' motion to suppress as evidence the tool box and power
saw seized from 35 Westwind Road.
4. Texas v. Brown, 460 U.S. 730 (1983), upon which Robles
relies for the proposition that even if the seizure of the tool box was lawful, the subsequent search of its contents was not, is not to the contrary. That case involved the warrantless seizure of a balloon containing heroin. Justice Stevens stated that where a movable container is in plain view, it could be seized without a warrant if there were probable cause to believe it contained contraband. However, he continued, once in custody there was no reason to fear destruction of the evidence, and thus there was no reason to excuse the inconvenience of obtaining a warrant before opening the container. Id. at 749-50 (Stevens, J.,
concurring). Here, as we have noted, the officers were armed with a warrant with authorized them to open a wide variety of containers in order to search for papers. There was no need to wait to obtain a separate warrant before opening the tool box.
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C. Conclusion C. Conclusion
Robles challenges certain of the district court's
evidentiary rulings on a variety of other grounds, claiming
unfair prejudice, likelihood of confusion, lack of
authentication and the admission of inadmissible opinion
testimony. Robles also challenges the denial of his motion
in limine to exclude testimony as to prior bad acts; the
court's jury instructions; the sufficiency of the evidence;
the application of the sentencing guidelines; and the
effectiveness and competence of defense counsel. None of
these claims of error call for extended discussion here. We
have carefully considered each of them and we find them to be
without merit. Affirmed.
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