United States of America v. Jesus Gonzalez

United States Court of Appeals
For the First Circuit
No. 08-2578
UNITED STATES OF AMERICA,
Appellee,
v.
JESUS GONZALEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Susan E. Taylor for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, and Sandra R.
Herbert, Assistant United States Attorney, were on brief, for
appellee.
June 23, 2010

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LYNCH, Chief Judge. This case demonstrates several
patterns in urban drug dealing: the shipment of packages of large
quantities of drugs through reputable carriers, here DHL; the use
of largely empty apartments by drug conspirators as drug drops to
which the shipments are addressed; and police who pretend to be
carrier employees, make deliveries, and arrest those who take
control of the package at the apartments. The defendant, Jesus
Gonzalez, convicted of conspiring to distribute and possessing with
the intent to distribute cocaine and marijuana, tries to take
advantage of this pattern to argue the court erred in not
suppressing statements and evidence from this sequence, including
from a search of the apartment to which his female co-conspirator
consented. Gonzalez is mistaken.
Gonzalez also made the mistake of committing perjury in
the course of the suppression hearing. He ended up with a two-
level enhancement to his sentence, from which he appeals. We
affirm his conviction and sentence.
I.
A. Facts
We describe the facts as the district court found them
from the suppression hearing. The court relied on the testimony of
three police officers--Detectives Ruggiero and Sanzi and Sergeant
Rave--and Gonzalez's consistent testimony. We also note

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inconsistent testimony by Sanzi and the defendant, Gonzalez, that
the district court rejected.
In July 2007, DHL was given a package in California
containing about one kilogram of cocaine and twenty-four pounds of
marijuana to deliver to "Anna Ohoven," 80 Hawkins Street, Second
Floor, Providence, Rhode Island. The record does not reveal how
DHL learned that the box contained drugs, but Gonzalez does not
deny that DHL had that information, made the police aware of the
drugs, and turned the package over to Rhode Island police. A male
caller had phoned DHL to inquire when it would be delivered; the
DHL phone number was later found in Gonzalez's pocket.
Providence Detective Richard Ruggiero attempted to
deliver the package on July 23, 2007, to the addressee, Ohoven, at
the 80 Hawkins address, which was the second-floor apartment of a
two-story, two-apartment building. He posed as a DHL deliveryman
and drove a DHL truck. After knocking at the apartment door,
Ruggiero heard someone climbing the stairs, who turned out to be
Gonzalez. Gonzalez said he was expecting the package, opened the
apartment door with his own keys, and invited Ruggiero inside the
apartment. The apartment seemed vacant; it appeared to contain
only a mattress and some clothes, not identifiable by gender from
Ruggiero's position, strewn about.
Gonzalez offered to sign for the package, saying that
Ohoven was his cousin and lived with him in the apartment. When

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Ruggiero insisted that Anna Ohoven had to sign for it, Gonzalez
said he could reach Anna and then called someone and spoke Spanish.
He handed Ruggiero the phone and said Anna was on the line.
Ruggiero spoke with a woman who identified herself as Anna and said
she could pick the package up at noon. Ruggiero agreed to return
at noon.
After Ruggiero left, Detective Timothy Sanzi, conducting
surveillance, saw Gonzalez return to the apartment twice, the
second time with a woman, later identified as Kristina LaFrance.
LaFrance later pled guilty and testified against Gonzalez.
Gonzalez and the woman went inside the building; then Gonzalez left
the building, parked his car in front of a lemonade stand up the
street, and watched the building from his car.
Ruggiero returned to the apartment about fifteen minutes
after Gonzalez and the woman arrived at the building. LaFrance,
who was inside the apartment, answered the door. She identified
herself to Ruggiero as Anna and as the woman on the earlier phone
conversation and said she lived in the apartment. She could not
produce identification. LaFrance then signed for the package,
writing the name "Anna Ohoben" and her address as the 80 Hawkins
second-floor apartment. Ruggiero identified himself as a police
officer, summoned backup, and arrested her.
LaFrance gave Ruggiero permission to search the
apartment. Ruggiero then did a quick sweep of the apartment, which

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the district court treated as a protective sweep; on the kitchen
counter he found a pink slip of paper with the name "Anna Ohoben"
signed repeatedly, as if for practice, and the DHL package tracking
number. Further searching with other officers uncovered more
evidence. LaFrance said that her brother's boyfriend had paid her
$100 to pick up the package, and she produced a $100 bill as proof.
Sanzi and other police officers arrested Gonzalez, who
was still sitting in his car. Detective Sanzi realized that
Gonzalez spoke poor English; he brought Gonzalez to the apartment
so that Sergeant Rave, who speaks fluent Spanish, could communicate
with him. Rave read Gonzalez his Miranda rights in Spanish, which
Gonzalez confirmed he understood, and then interviewed him.
Gonzalez told Rave that he had never been to the apartment before
and was simply buying lemonade up the street. Gonzalez's own
testimony confirmed that his statement to Rave that he had never
been to the apartment was untrue; at the suppression hearing
Gonzalez testified that he lived in the apartment.
Rave also did a pat-down search of Gonzalez. Among other
items, he found two pieces of paper. One had "DHL," "Anna Ohoben,"
and the package tracking number written on it. The other had the
DHL phone number on it. He also found keys to a Mercedes-Benz; a
silver Mercedes, registered to Gonzalez, was parked in the
apartment building's driveway.

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Ruggiero later obtained a search warrant for the
Mercedes, after learning that Gonzalez sometimes used a silver
Mercedes to traffic drugs. That search turned up further
incriminating evidence.
At the suppression hearing, Detective Sanzi testified
that he did not see Gonzalez enter the building when Ruggiero made
his first delivery attempt. Sanzi was on roving surveillance and
was driving around the block at the time. He did see Ruggiero
enter the building and then heard on police radio that Ruggiero was
speaking on the phone to a woman. Sanzi later saw Ruggiero come
downstairs and approach and speak to Gonzalez, who was on the
street.
Gonzalez testified that on July 23 he was living, alone,
in the 80 Hawkins apartment. He came home and found a DHL delivery
person waiting. Gonzalez testified that he was not expecting a
delivery and that he had told Ruggiero that the package was not
his. He could not explain why the package was addressed to his
apartment.
Gonzalez testified that he told Ruggiero that his cousin
possibly was expecting a package. At the hearing Gonzalez could
not name that cousin, but he was sure he had not said her name was
Anna Ohoven. He admitted putting his cousin on the phone with
Ruggiero but said that he did not know what was said. Gonzalez
testified that he offered to let Ruggiero leave the package outside

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the apartment, which Ruggiero declined, and Gonzalez and Ruggiero
left. Gonzalez denied ever allowing Ruggiero inside the apartment.
Gonzalez testified that he then drove to see his brother
and invited his brother's girlfriend, LaFrance, to clean the
apartment. He testified that he dropped LaFrance off to clean the
apartment and purchased a lemonade while waiting for LaFrance to
finish. Gonzalez testified that Rave did not read his Miranda
rights before interrogating him at the apartment, which the
district court did not believe. He claimed that he was driven to
the state police barracks (in his own car) and there signed a
waiver form, though his rights were never read to him. Gonzalez
also said that Rave searched him at the barracks, not at the
apartment.
The district court fully credited Ruggiero's and Rave's
testimony, reflected in the earlier narrative. It credited Sanzi's
and Gonzalez's testimony to the extent their stories matched the
other officers'. It did not credit any of Gonzalez's conflicting
testimony.
B. Procedural History
Gonzalez was indicted with LaFrance on July 25, 2007, on
three counts of conspiracy to distribute and possession with the
intent to distribute cocaine and marijuana. On August 19, 2008,
Gonzalez moved to suppress evidence from the searches of his
apartment, his person, and his Mercedes, as well as the statements

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he made to Rave. The district court orally denied the motion after
a hearing on September 3, 2008, at which the court heard testimony.
The court ruled that police had probable cause to arrest Gonzalez
and that Ruggiero reasonably concluded that LaFrance had apparent
authority to consent to the search of the apartment, which
foreclosed Gonzalez's challenge to the warrant to search his car.
The court also found Gonzalez had been read his Miranda rights.
A jury convicted Gonzalez on September 11, 2008, after a
four-day trial. On December 12, 2008, the district court held a
sentencing hearing for Gonzalez. The court imposed a two-level
enhancement for obstruction of justice after finding Gonzalez had
committed perjury during the suppression hearing. This ruling
increased Gonzalez's base offense level from 26 to 28. The
district court sentenced him to the bottom of his guidelines range,
seventy-eight months, and supervised release and imposed a $300
special assessment.
II.
Gonzalez's challenges to the district court's suppression
rulings are meritless. "In reviewing motions to suppress, we
review legal determinations de novo, but factual findings for clear
error, and will uphold a lower court's denial of a motion to
suppress so long as 'any reasonable view of the evidence supports
it.'" United States v. Bater, 594 F.3d 51, 55 (1st Cir. 2010)

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Consent is an exception to the Fourth Amendment's 1
prohibition on government searches of a person's residence without
a warrant. Rodriguez, 497 U.S. at 181. Police may obtain consent
from the occupant "or from a third party who possesses common
authority over the premises." Id. Common authority means people
are mutually using the property such that they have "joint access
or control" over it "for most purposes." Id. (quoting United
States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).
Mutual use means people make such shared use of a residence
"that it is reasonable to recognize that any of the co-inhabitants
has the right to permit the inspection" of the common residence
"and that the others have assumed the risk that one of their number
might permit the common area to be searched." Matlock, 415 U.S. at
171 n.7.
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(citations omitted) (quoting United States v. Mendez-de Jesus, 85
F.3d 1, 2 (1st Cir. 1996)).
A. Search of the Apartment
Gonzalez does not challenge the district court's factual
finding that LaFrance voluntarily consented to the search; he
argues she lacked apparent authority to do so, and so the evidence
from the apartment should have been suppressed. The government
chose to present the consent as having been given with apparent
authority, and so we do not consider whether LaFrance had actual
authority.
A search is valid if, at the time, officers reasonably
believe a person who has consented to a search has apparent
authority to consent, even if the person in fact lacked that
authority. Illinois v. Rodriguez, 497 U.S. 177, 185-86, 188-89
(1990); United States v. Carrasco, 540 F.3d 43, 49 (1st Cir.
2008). The touchstone of this inquiry is what was reasonable 1

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under the circumstances. See Rodriguez, 497 U.S. at 188-89.
Viewed objectively, "would the facts available to the officer at
the moment . . . warrant a man of reasonable caution in the belief
that the consenting party has authority over the premises?" Id. at
188 (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)) (alteration
in original) (internal quotation marks omitted).
Detective Ruggiero could have reasonably believed
LaFrance had authority to consent to the search of the apartment.
LaFrance and Gonzalez told Ruggiero that she lived in the
apartment, and she answered the door when Ruggiero returned. The
package was addressed to Anna Ohoven at the second-floor apartment
on 80 Hawkins. "Ohoven" arranged with Ruggiero to pick up the
package there at noon. LaFrance identified herself as Ohoven, and
she signed for the package.
Gonzalez argues it was unreasonable for the officers to
believe LaFrance's claim that she lived in the apartment because
she misspelled the name Ohoven as "Ohoben," could not produce
identification, and it appeared no one lived in the apartment. If
these facts signaled that LaFrance was lying, they supported the
inference that the apartment was not lived in at all but was being
used as a drug drop to which she at least had joint access.
The test is not whether LaFrance actually lived in the
apartment but whether she apparently had sufficient authority to
consent to its search. It would turn the Fourth Amendment upside

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down to say that an officer was unreasonable because the person
claiming authority who answered the door did not in fact live there
but used it for drug dealing. The doctrine of apparent authority
to consent to searches of physical spaces is not limited to
residences where people live. While many cases have arisen in the
context of dwellings, e.g., United States v. Penney, 576 F.3d 297,
307 (6th Cir. 2009); United States v. Nichols, 574 F.3d 633, 636-37
(8th Cir. 2009); United States v. McGee, 564 F.3d 136, 139-41 (2d
Cir. 2009), neither the Fourth Amendment nor the ability to consent
is so limited, see, e.g., United States v. Murphy, 516 F.3d 1117,
1124 (9th Cir. 2008) (observing that common authority extends "well
beyond residences" and holding that a person had common authority
over storage units); United States v. Law, 528 F.3d 888, 903-04
(D.C. Cir. 2008) (holding that a landlord had authority to consent
to a search of an apartment the defendant did not live in but used
for drug storage).
B. Search Incident to Arrest
Gonzalez argues the evidence from the search incident to
his arrest should have been suppressed because police lacked
probable cause to arrest him. Probable cause exists when
reasonably prudent police officers, under the facts and
circumstances, would believe the defendant had committed or was
about to commit a crime. United States v. Burhoe, 409 F.3d 5, 10

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We need not reach the district court's alternative 2
conclusion that, even without the evidence found on Gonzalez or in
the apartment, sufficient evidence supported the search warrant.
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(1st Cir. 2005). The recitation of the facts earlier refutes
Gonzalez's argument.
When Ruggiero initially tried to deliver the package,
Gonzalez said he was expecting the delivery, claimed to be Ohoven's
cousin, and offered to sign for the package. Gonzalez had the keys
to the apartment at the delivery address and let Ruggiero inside
that apartment. Gonzalez also put Ruggiero on the phone with
"Ohoven" and later drove LaFrance, who ultimately signed for the
package as "Ohoben," to the 80 Hawkins apartment while Gonzalez
watched nearby. There was probable cause.
C. The Warrant to Search Gonzalez's Mercedes-Benz
Gonzalez argues that without evidence recovered from his
apartment and person there was insufficient evidence to support the
search warrant of his Mercedes-Benz. It follows from what we have
said that this argument fails.2
D. Statements Gonzalez Made after His Arrest
Gonzalez next argues the district court should have
suppressed the statements he made to Rave after his arrest because,
contrary to Rave's testimony, Rave did not first read his Miranda
rights to him. The district court did not clearly err by crediting
Rave's testimony over Gonzalez's.

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Gonzalez appears to make one further argument: that a
language barrier prevented him from understanding his rights.
Rave's testimony, accepted by the district court, that he read
Gonzalez those rights in Spanish and that Gonzalez confirmed he
understood them refutes this claim.
III.
The district court did not err when it imposed a two-
level sentencing enhancement for obstruction of justice after
finding Gonzalez committed perjury at the suppression hearing. We
review the court's legal conclusions de novo and factual
conclusions for clear error. United States v. Duclos, 214 F.3d 27,
31 (1st Cir. 2000). Gonzalez does not claim that the district
court's interpretation of the Sentencing Guidelines was error; he
argues there was insufficient evidence to support the enhancement.
District courts may impose a sentencing enhancement for
obstruction of justice, see U.S.S.G. § 3C1.1, when, inter alia,
they find by a preponderance of the evidence that a defendant has
committed perjury, United States v. Shinderman, 515 F.3d 5, 18-19
(1st Cir. 2008); United States v. Gobbi, 471 F.3d 302, 314 (1st
Cir. 2006); e.g., United States v. Meada, 408 F.3d 14, 19-20 (1st
Cir. 2005) (upholding an enhancement based on false testimony at a
suppression hearing).
To impose this enhancement, district courts must find the
"specific elements of perjury." United States v. Campusano, 556

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F.3d 36, 40 (1st Cir. 2009). Perjury means "false testimony under
oath concerning a matter material to the proceeding, as long as the
testimony is given 'with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty
memory.'" Shinderman, 515 F.3d at 19 (quoting United States v.
Dunnigan, 507 U.S. 87, 94 (1993)). Courts "should be cognizant
that inaccurate testimony or statements sometimes may result from
confusion, mistake, or faulty memory and, thus, not all inaccurate
testimony or statements necessarily reflect a willful attempt to
obstruct justice." U.S.S.G. § 3C1.1 cmt. n.2.
Gonzalez's claim is that the district court did not
sufficiently consider whether he simply suffered memory lapses or
was confused. We agree with the district court that "there is no
way you can view [the] entire testimony as anything other than an
effort to completely and totally deceive the Court in an effort to
try to get the Court to grant the suppression motion."
Gonzalez's testimony involved a series of convenient and
implausible denials. We list only a few. He insisted that he was
not expecting a delivery and that he never told Ruggiero the
delivery was his or that he knew Anna Ohoven. And he insisted,
despite Rave's contrary testimony, that Rave never read his Miranda
rights to him.
Gonzalez failed to justify several inconsistencies.
Gonzalez never explained why papers with the name "Anna Ohoben,"

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the package's tracking number, and DHL's phone number were in his
pocket, other than to suggest the police planted them there.
Gonzalez also did not explain why he would need LaFrance to clean
a basically empty apartment. As the district court observed, his
denials were conveniently targeted at critical evidence that
supported his suppression motion.
Affirmed.

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