USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1043
No. 96-1669

UNITED STATES OF AMERICA,

Appellee,

v.

DONALD E. CLEVELAND,
Defendant, Appellant.

____________________

No. 96-1128

UNITED STATES OF AMERICA,

Appellee,

v.

RAMON E. VASQUEZ,
Defendant, Appellant.

____________________

No. 96-1659

UNITED STATES OF AMERICA,

Appellee,

v.

ENRIQUE GRAY-SANTANA,
Defendant, Appellant.

____________________

ERRATA

The

published opinion of this Court issued on February 18, 1997,

is amended as follows:

Page 4:

insert as line 1, the following:

"to eight kilograms of

cocaine from co-defendant Juan Rodriguez"

Page 5, 4th line from bottom:

delete comma after "Acosta"

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1043

No. 96-1669

UNITED STATES OF AMERICA,

Appellee,

v.

DONALD E. CLEVELAND,

Defendant, Appellant.

____________________

No. 96-1128

UNITED STATES OF AMERICA,

Appellee,

v.

RAMON E. VASQUEZ,

Defendant, Appellant.

____________________

No. 96-1659

UNITED STATES OF AMERICA,

Appellee,

v.

ENRIQUE GRAY-SANTANA,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Bownes, Senior Circuit Judge.

____________________
____________________

Inga S. Bernstein and John H. Cunha, by Appointment of the

_________________
_____________
with whom Norman S. Zalkind,
__________________

Cou

Zalkind, Rodriguez, Lunt & Duncan

__________________________________

Salsberg, Cunha & Holcomb, P.C.

__________________________________

were

on consolidated

briefs

appellants Enrique Gray-Santana and Donald E. Cleveland.

Oliver C. Mitchell, Jr. with
_________________________
Goldstein & Manello, P.C. were
____________________________

whom
on

Donnalyn B. Lynch Kahn

________________________

brief

for

appellant Ramon

Vasquez.
Andrea Nervi Ward, Assistant
__________________

United States

Attorney, with

Donald K. Stern, United States Attorney, was on briefs for the Uni
________________
States.

____________________

February 18, 1997

____________________

CAMPBELL, Senior Circuit

Judge.

Ramon E.

Vasquez

_____________________

appeals from

his

conviction by

possess cocaine with intent to

U.S.C.

846

and for

jury for

possession of cocaine

court erred in

certain physical

to

distribute in violation of 21

distribute in violation of 21 U.S.C.

the district

conspiracy

with intent

841.

He contends that

denying his motion

evidence and in omitting

to

to suppress

"hesitate to act"

language from its reasonable doubt instruction.

Enrique Gray-Santana and Donald Cleveland, who were

Vasquez's

possess

co-defendants, pleaded

to

attempting

to

cocaine with intent to distribute in violation of 21

U.S.C.

during

guilty

846 and 841(a) and

and

violation

in

relation

of 18 U.S.C.

to

to carrying or using a firearm

drug

924(c)(1).

trafficking

As

crime in

their guilty pleas

permit, they now appeal from the district court's

their motions to suppress

and motions in limine.

appeal from the district court's denial of

924(c)(1)

convictions for carrying

denials of

They also

relief from their

or using a

firearm in

relation to a drug crime.

They argue that their guilty pleas

and convictions should be

invalidated under Bailey v. United

______
______

States,
______

___

U.S. ___,

116 S.

Ct.

501 (1995),

a decision

handed down by the Supreme Court shortly after acceptance

their guilty pleas.

I.

Background

-4-

of

Most of the facts are not in dispute.

("Gray"), a

five

resident of

to eight

Rodriguez (not

the

New York City,

kilograms of

arranged to

cocaine from

a present appellant).

cocaine through other contacts

Gray-Santana

Gray

secure

co-defendant Juan

intended to sell

he had in

Boston, so he

arranged to take delivery in Boston.

On the morning of

October 18, 1994, Gray travelled

by bus

to

picked

Gray up in

from

and

Boston, planning

to meet

Cleveland.

a rented white Mazda

a friend and took

him to his

Cleveland

929 he had borrowed

house.

There, Cleveland

Gray placed three loaded handguns inside a Louis Vuitton

duffel bag and put the bag inside the Mazda's trunk.

planned

to

cocaine.

use the

guns to

At around 4 p.m.,

Rodriguez.

rob

their suppliers

The two

of their

Cleveland and Gray were paged by

They then left in the Mazda to meet

Rodriguez in

the Symphony Hall area of Boston.

At

this time, the

was investigating

Drug Enforcement Administration

one Juan Pagan.

that Pagan was shipping large amounts

Rico to New England.

The DEA

had information

of cocaine from Puerto

On October 17, 1994,

heightened phone

activity

led

DEA

Agents to

begin

physical

surveillance,

including videotaping, of

the Connecticut apartment

where Juan Pagan resided.

Around noon on October

two cars

arrived at

the complex.

-5-

The first

complex

18, 1994,

was a

Lexus,

driven by William Acosta with Vasquez in the back

seat.

The

second was a Lincoln, driven by Rodriguez.

After the

black

bag and

apartment.

cars parked, Rodriguez

then

took

Vasquez, carrying a

the Lexus and sat

the

bag

up

Acosta came back

Vasquez and Rodriguez

Vasquez

returned

in

the

out of

After ten

and spoke to

to leave

Pagan's

cellular phone, got

Vasquez,

the complex

brown Oldsmobile driven by one Jorge Quinones.

later,

to

with Rodriguez in the Lincoln.

or fifteen minutes,

prompting

Acosta

handed Acosta

in a

An hour or so

Oldsmobile,

followed

by

from

two

Rodriguez in a white Isuzu Trooper.

The

DEA

had

received

information

confidential sources that Pagan used a white Isuzu Trooper in

his

drug operations.

These informants had also told the DEA

that some of Pagan's vehicles had hidden compartments used to

hold

drugs.

One of

the informants had

white Isuzu Trooper had such

stated that Pagan's

a hidden compartment under

the

rear seat.

After the

observed examining

Isuzu arrived, Acosta and Rodriguez were

its back

driving the Lexus with

highways, staying

Acosta then

Vasquez in the back seat.

followed them in the Isuzu.

major

seat area.

The two cars drove

close to

agents followed them the entire way.

-6-

55 miles

left,

Rodriguez

to Boston on

per hour.

DEA

After the caravan arrived in the Symphony Hall area

of Boston, Acosta and Rodriguez parked the cars.

Acosta then

used the Lexus to

had arrived

in the Mazda,

away,

guide Cleveland and Gray, who

to where the

Isuzu was parked.

Acosta drove

and Vasquez was next observed sitting in the back seat

of the Mazda.

Gray exited

the Mazda and got into the Isuzu.

Vasquez got into the front seat of the Mazda.

The

the

DEA

two cars began to

agents

blocked

them.

occupants of both cars to exit

them. The agents then

drive off.

The

At this point,

agents

ordered

the

their vehicles and handcuffed

moved the suspects and their

cars out

of traffic to a nearby parking lot.

The

agents

kilograms of

cocaine in

the back seat.

bag in the

tape.

searched

the

Isuzu

a concealed

They then

and

found

compartment underneath

searched the Mazda and

trunk containing

six

the three guns,

found the

rope and

duct

At that point, the four men were told they were under

arrest.

custody, Gray

few

hours after

gave a

his

arrest, while

statement to DEA

he

agent Bruce

was in

Travers

confessing to participation in the events described above.

Vasquez

evidence found

filed

to suppress

the physical

on his person at the time of his arrest.

district court denied

jury

a motion

and convicted

his motion.

of

Vasquez was

conspiracy to

The

tried by

possess cocaine

with

-7-

intent to distribute and of possession of cocaine with intent

to

distribute.

The court

sentenced him

to 121

months in

prison.

Cleveland

attempting to

to carrying or

and

eventually

possess cocaine with intent

using a firearm during

drug trafficking crime,

adverse ruling

Gray

by

pled

guilty

to

to distribute and

and in relation to

subject to their right to appeal any

the district

court on

their motions

to

suppress physical evidence and to suppress Gray's post-arrest

statement.

The district

court

sentenced each of them to 180

of supervised

with

release.1

denied

their motions

and

months in prison and 60 months

After

the Supreme Court

came down

its Bailey decision, 116 S. Ct. 501, Cleveland and Gray

______

moved in

the district court

for relief from

the conviction

for

carrying

or

using a

trafficking crime.

firearm

in

relation

to a

drug

The court denied that motion.

II.

Vasquez

A. The Search of Vasquez's Person:

__________________________________

In his

the

first point

district court erred

the physical evidence the

included

tying

a pager,

of error, Vasquez

in denying his

argues that

motion to suppress

agents found on his person.

address book,

Vasquez to the other

business cards,

defendants.

He

This

and notes

contends that a

____________________

1.

Rodriguez

pleaded guilty

to

conspiracy and

possession

charges and was also sentenced to 120 months in prison and 60

months of supervised release.

-8-

wrongful

de

facto arrest

ordered out of

the Mazda

Vasquez told he was under

which

time the

Because

probable

occurred

and handcuffed.

he was

initially

(Only later

was

arrest and thereafter searched, by

cocaine had been

the initial

when

de facto

discovered in

arrest was

cause, Vasquez argues that it

the Isuzu.)

allegedly without

was illegal and that

it tainted all subsequent events, causing the later search of

his person to violate the Fourth Amendment.

The district

that the agents had

time

court

and we

agree,

probable cause to arrest Vasquez

at the

they ordered him out

held, however,

of the Mazda

Accordingly, regardless of whether

or later, the arrest

his

an

and handcuffed him.

the arrest occurred

was legal and the subsequent

person was proper.

then

search of

"[I]t is well established that '[i]f

arrest is lawful, the arresting

officers are entitled to

search the individual apprehended pursuant to

that arrest.'"

United States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir.)

_____________
________________

(quoting

United States v. Uricoechea-Casallas, 946 F.2d 162,

_____________
___________________

165 (1st Cir. 1991)), cert. denied, 115 S. Ct. 193 (1994).
____________

"Law

enforcement

officers may

effect warrantless

arrests

that

provided that

the suspect

they have

probable cause

has committed or

is committing

United States v. Martinez-Molina, 64

_____________
_______________

1995)

(1976);

v. Pugh,
____

420

-9-

U.S.

a crime."

F.3d 719, 726 (1st Cir.

(citing United States v. Watson,

_____________
______

Gerstein
________

to believe

423 U.S. 411, 416-18

103, 113-14

(1975)).

"[The government] need

only show

arrest, the

circumstances known to

officers

facts and

were

sufficient to

believing that the defendant

an offense."

that, at the

warrant

time of

the

the arresting

prudent person

in

had committed or was committing

Torres-Maldonado, 14
________________

F.3d at 105.

See also
_________

Beck v. Ohio, 379 U.S. 89, 91 (1964).

____
____

"Of course, probable cause

must exist with respect

to each person arrested, and 'a person's

mere propinquity to

others independently suspected of criminal activity does not,

without

more,

give rise

to probable

cause to

search that

person.'"

Martinez-Molina, 64 F.3d at 726 (quoting Ybarra v.

_______________
______

Illinois,
________

444 U.S. 85, 91 (1979)).

"[C]ases in which courts

find

that

probable

substantially more

cause

than a

innocent

association

criminal

activity."

exists

generally

momentary, random,

between the

defendant

Martinez-Molina,
_______________

or apparently

and

64

involve

the known

F.3d

at

727

(discussing cases).

Here, prior to seizing Vasquez, the agents had been

investigating Pagan and his

drug trafficking operations

several

events of this

had

years.

learned from

Before the

informants that

kilogram quantities of cocaine,

case, the agents

Pagan was

trafficking in

shipping it from Puerto Rico

to Hartford, Connecticut and Springfield, Massachusetts.

agents had learned that Pagan used couriers to

cocaine.

Some of

for

The

transport the

Pagan's couriers had been arrested

at the

-10-

San Juan airport with

several kilograms of cocaine

in their

luggage and had admitted to working for Pagan.

Two

confidential informants

reliable in related

matters had told

who

had each

DEA agents that

proved

among

the many vehicles Pagan used to transport drugs and money was

a white Isuzu Trooper.

transport

vehicles

They each also related

often had

that Pagan's

concealed, electronically-

controlled compartment used to hide whatever was being moved.

One

of them asserted

Trooper

that he had seen

had such a compartment

that the white Isuzu

in the floor

under the rear

seat.

The

informants

agents

and from

had

also

learned

other sources

from

that Pagan's

one

of

the

girlfriend

lived in apartment D-219 at the Connecticut apartment complex

and that

Pagan used that

The apartment was

had installed

apartment in his

drug activities.

listed under the name "J. Pagan."

a pen

register on the

The DEA

apartment's phone

they could track calls made to and from that number.

so

On October

sharp

increase

apartment.

phone

in

17, 1994,

phone

the pen register

activity

from

the

revealed a

Connecticut

Some of the numbers being called matched cellular

and beeper

numbers that the

agents knew

belonged to

Pagan's

previously identified drug

associates.

The agents

decided

to begin

apartment.

This

physical

surveillance of

surveillance

-11-

included

the Connecticut

agents

stationed

around the apartment complex and two agents who were equipped

with a

video camera

in

an apartment

that

had a

view

of

Pagan's apartment.

little after

noon on

October 18th,

the agents

observed a Lexus and a Lincoln Town Car enter the apartment's

parking lot.

that

followed,

Pagan's

drug

The various

coupled

dealing,

movements of people

with the

DEA's

strongly

indicated

transaction was taking place.

the

and vehicles

information

that

Acosta, who had been

Lexus, entered

Pagan's

apartment building

Rodriguez, carrying

a large

black shoulder bag.

handed this bag to Acosta in the building's lobby.

about

drug

driving

followed by

Rodriguez

Later on,

the agents saw Acosta talking to Pagan on Pagan's balcony.

Vasquez

Rodriguez

exited

the

Lexus

and the Lincoln carrying a

the "well known tools of the

and

walked

over

to

cellular phone, one of

drug trade."

United States
_____________

v.

De La Cruz, 996 F.2d 1307, 1311 (1st Cir.), cert. denied, 510
__________
____________

U.S. 936 (1993).

See also Martinez-Molina, 64 F.3d

________ _______________

at 728.

Vasquez waited with Rodriguez inside the Lincoln until Acosta

came out

with

Vasquez.

another man,

Jorge

Then Quinones left,

Oldsmobile.

Vasquez and

Quinones, and

returning shortly in

Rodriguez got into

spoke

to

a brown

the Oldsmobile

and drove out of the complex.

An hour or so

followed

later Vasquez and Quinones returned,

by Rodriguez in a

white Isuzu Trooper, exactly the

-12-

car

the agents had been

and drug

proceeds.

told Pagan used

It was

to transport drugs

also the vehicle said

to have a

hidden compartment for drugs and money in the floor under the

rear

seat.

parking lot,

While Pagan stood on his balcony overlooking the

Acosta and

Rodriguez were

seen to

be looking

into the Isuzu's back seat area, where the secret compartment

was said to be located.

At

this point,

the agents

had probable

believe that Vasquez, Rodriguez, Acosta, Pagan,

were involved in a

likely

bearing

drug transaction, with the

the

suspects immediately,

contraband.

the agents

Rather

cause to

and Quinones

Isuzu Trooper

than

arrest

chose to follow

the

the Isuzu

Trooper and the Lexus as they drove to Boston.

What

drive

in

happened

tandem

to

thereafter

Boston

and

beginning

ending

intervention

was wholly consistent with

an

drug

unfolding

involvement.

transaction

and

with the

with the

agents'

the existence of

Vasquez's

active

Vasquez and Rodriguez stood on a Boston street

corner, apparently checking the area for

police.

Later, and

after the agents had seen Acosta speak to Cleveland and Gray,

the

agents spotted Vasquez inside the Mazda, to which he had

moved from the

with

Cleveland

Lexus.

when the

Vasquez was still

agents

ordered everyone out.

-13-

stopped

inside the

the vehicles

Mazda

and

By this

constitute

time, the agents had

probable cause

that Vasquez

ongoing drug trafficking crime

the other

suspects was

authority, therefore,

from the

Mazda

district court

various

did

was involved

handcuffed,

not

items later found

err in

in an

and that his association with

not momentary, random,

They had

and

abundant evidence to

at the

time he

to arrest

refusing

on Vasquez's

or innocent.

was ordered

Vasquez.

to

The

suppress

person when

the

he was

searched.

B. The Reasonable Doubt Instruction:

____________________________________

Vasquez

asserts that

the district court

erred in

refusing

to

include

"hesitate

reasonable doubt instruction.

that, upon

his objection to

have complied with

talk about a

to

act"

language

in

its

In particular, Vasquez insists

the omission, the

his request

reasonable doubt,

to tell the

we mean a

reason and common sense, the kind of

court should

jury, "When

doubt based

we

upon

doubt that would make a

reasonable person hesitate to act."

The

court

short answer

"hesitate to

reasonable doubt

Cir.

this argument

is that

this

has explicitly held that a district court's refusal to

include

error.

to

act"

language in

to the jury does

See United States v.

___ _____________

1993); United States v.

_____________

its explanation

of

not constitute reversible

Vavlitis, 9 F.3d 206, 212 (1st

________

O'Brien, 972 F.2d

_______

12, 15 (1st

Cir.

1992).

Although

we

accepted

an

instruction

that

v. Drake, 673
_____

F.2d

-14-

included such language

in United States
_____________

15, 21 (1st Cir. 1982), we have also criticized the "hesitate

to

264

act" formulation.

(1st Cir.

See
___

Gilday v. Callahan,
______
________

1995) (characterizing

59 F.3d 257,

the "hesitate

to act"

language as

1269

"arguably unhelpful"), cert. denied,

____________

(1996);

O'Brien,
_______

972

instructions such as the

compare reasonable

individual jurors

F.2d

at

15-16

116 S. Ct.

(criticizing

"hesitate to act" formulation which

doubt to the decisional

in their

own affairs as

standard used by

trivializing the

constitutionally required burden of proof).

The

Supreme Court has stated that the Constitution

does not require district

courts to define reasonable doubt,

nor does it require trial courts who do choose to explain the

term

to employ

advising

the

"any

jury of

particular

the

form of

government's

words

burden of

. .

in

proof."

Victor v. Nebraska, 511 U.S. 1, 5 (1994).

______
________

"Rather, 'taken as

a whole,

convey the concept

the instructions must correctly

of reasonable doubt to

the jury.'"

Id. (quoting
___

Holland v.
_______

United States, 348 U.S. 121, 140 (1954)).

_____________

In instructing

the jury

on reasonable

doubt, the

district court stated:

As I

have said,

the burden is

Government to prove
doubt

beyond a

that a defendant

upon the
reasonable

is guilty of the

charge made against the defendant.

a strict

and heavy burden,

but it

It is
does

not mean that a defendant's guilt must be

proved
does

beyond
require

all possible
that the

-15-

doubt.

It

evidence exclude

any

reasonable

doubt

concerning

defendant's guilt.

reasonable

doubt

may arise

not

only from the

evidence produced but also

from

of

doubt

lack
exists

considering
reason

and

say that they

evidence.

when,
all

Reasonable

after weighing

the

evidence,

common sense,

and
using

jurors cannot

have a settled

conviction

of the truth of the charge.

Of course, a

defendant is never

be convicted on suspicion

to

or conjecture.

If, for example, you view the evidence in

the case as reasonably
of

two

permitting either

conclusions

one

that

defendant is guilty as charged, the other

that the

defendant is not

guilty

you

will find the defendant not guilty.

It

is

Government

not
to

sufficient

for

the

establish a

probability,

though a strong one, that a

fact charged

is more likely to

be true than not true.

That is not enough

to meet the burden of

proof

beyond reasonable

other

hand, there are very few things in

this

world that

we

doubt.

On the

know with

absolute

certainty, and in criminal cases

does

not

require

proof that

the law
overcomes

every possible doubt.

Concluding
burden,

my

then, I

instructions on

instruct you

the Government must do to

burden is
part

the

that what

meet its heavy

to establish the truth of each

of each

offense

charged by

proof

that convinces you and leaves you with no

reasonable doubt, and thus

satisfies you

that you can, consistently with your oath

as jurors, base your verdict upon it.
you

so

against

find as

to a

a defendant,

particular charge
you will

verdict of guilty on that charge.

the

other hand,

you

If

think

return a
If, on

there is

reasonable

doubt

defendant
offense,

is

about

guilty

of

whether
a

the

particular

you must give the defendant the

-16-

benefit

of

the

doubt

and

find

the

defendant not guilty of that offense.

This explanation correctly

conveyed the concept of

reasonable doubt to the jury.

III.

Cleveland and Gray

A. The Vehicle Searches:

________________________

In their

argue that

the

their motion

first point of error,

district court

to suppress the

erred in

Cleveland and Gray

refusing to

evidence found in

grant

the agents'

search of the Isuzu Trooper and of the Mazda.

"A police officer

of the interior of

as long

may effect a

a motor vehicle on a

warrantless search

public thoroughfare

as he has probable cause to believe that the vehicle

contains contraband or other

United States v. Staula,

_____________
______

denied, 117
______

S. Ct.

evidence of criminal activity."

80 F.3d 596, 602 (1st

156 (1996).

See also
_________

Cir.), cert.
_____

California
__________

v.

Acevedo, 500 U.S. 565, 570

_______

U.S. 42,

(1991); Chambers v. Maroney,

________
_______

46-52 (1970); United States

_____________

F.3d 719, 730 (1st Cir. 1995).

cause

to

search a

containers within

vehicle,

399

v. Martinez-Molina, 64
_______________

When the police have probable

they

that vehicle.

may

See
___

also search

Acevedo, 500
_______

closed

U.S. at

569-81.

Even assuming that Cleveland and Gray have standing

to

contest

the

searches

proposition in itself, the

in

this

case,

problematic

agents clearly had probable cause

-17-

to search the vehicles.

the time the agents

cause

As explained in Part II-A, above, by

stopped the two cars, they

had probable

to believe that the defendants were involved in a drug

transaction and

movements of the

that the Trooper contained

Mazda in following the

contraband.

The

Lexus to rendezvous

with the Isuzu, when combined with the exchange

of personnel

Gray moving into the Isuzu and Vasquez entering the Mazda

provided the agents

with probable cause

to believe that

Cleveland and Gray were also involved in the drug transaction

and

that the

search thus

district

Mazda contained

did not

court

contraband.

violate the Fourth

did not

err

in

The warrantless

Amendment, and

refusing to

suppress

the

the

evidence found in the two vehicles.

B. Gray's Statement:
____________________

In

the next point of error,

district court

Gray asserts that the

should have suppressed the

to Agent Travers

in the DEA office

statement he made

after his arrest.

Gray

claims that he had invoked his right to counsel before making

the statement and that the agents

coerced the statement from

him through intimidation.

hearings

The district

court, after holding

two evidentiary

at

heard

of

which it

the testimony

Gray, Agent

Travers, and

night

of

another agent

Gray's

allegations

of

arrest,

present at DEA

concluded

coercive activity

by

that

the

headquarters the

Gray's

various

agents were

not

-18-

credible.

The court

conversation

also found that Gray had

with the agents

that led to

initiated the

his confession by

knocking

on the

door of

Travers that he

his cell.

wished to

speak with him

leading up to his arrest and

After examining the

findings

of

erroneous.

(1st

events

record, we believe

district court

his

that these

not clearly

See United States v. Valle, 72 F.3d

___ ______________
_____

210, 213-14

suppression

court's

about the

Agent

were

Cir. 1995)

the

then told

signed a written waiver of

rights.

fact by

Gray

("In reviewing

motions,

factual

this

orders granting

court

findings,

scrutinizes

including

its

or denying

district

credibility

determinations, for traces of clear error.").

In

suppress

credibility

this

the

case, as

challenged

call"

and

in

Valle, "whether
_____

statements

"[s]uch

calls

boils

are

or

down

grist

not to

to

for

the

district court's mill."

Valle, 72
_____

F.3d at 214.

initiated

with

agents

the

statement after

contact

he had

district court was

See
___

the

invoked his

correct to deny

right

Since

that led

Gray

to

his

to counsel,

the

the motion to

suppress.

Edwards v. Arizona, 451 U.S. 477, 484-86 (1981) (holding

_______
_______

that once a defendant

subject to

counsel has

has asked for an attorney,

further interrogation

been made

by the police

available to

her unless

she is not

until after

she herself

initiates further communication with the authorities); United

______

States
______

v.

Fontana, 948
_______

F.2d

796, 805-06

-19-

(1st

Cir. 1991)

(noting that

been

initiation of interrogation by

broadly interpreted);

1038, 1042 (1st Cir.

Watkins
_______

the accused has

v. Callahan,
________

724 F.2d

1984) (stating that "an accused

is not

powerless to countermand an election to talk to counsel").

Similarly, we

court's

find no clear error

determination that

coercive acts alleged by

the

Gray.

agents did

in the district

not commit

See United States

___ _____________

the

v. Burns,
_____

15 F.3d

issue

211,

of

plenary

216 (1st

Cir. 1994)

voluntariness

review,

subsidiary

we

findings

is a

will

of

question

accept

fact

("Although the

of

the

unless

law

ultimate

subject to

district

they

court's

are

'clearly

erroneous.'").

Based on the facts as found by the district

the court's

therefore

holding that Gray's statement

admissible at

trial

under 18

court,

was voluntary and

U.S.C.

3501 was

proper.

The court applied the totality of the circumstances

test

mandated

by 18

U.S.C.

attention to the factors

____________________

3501(b), paying

particular

identified by that section.2

Gray

2.

18 U.S.C.

3501(b) states:

(b) The

trial judge

voluntariness
the

in determining the

shall

take into

circumstances surrounding

confession,
between

including

arrest and

(1)

issue of

consideration all
the giving

the

time

arraignment of

of the
elapsing

the defendant

making the confession, if it was made after arrest

and before arraignment, (2) whether such defendant
knew

the nature of the offense

charged or of

with which he was

which he was suspected at

of making the confession,

-20-

the time

(3) whether or not such

gave his statement within

this

case within

six hours of his

the rule of

3501(c).3

nature of

the offense

that Gray

knew the

suspected

at the time he

arrest, bringing

The court found

of which

made the confession;

he was

knew that he

was not required to make any statement and that any statement

he did make could

prior

to the questioning of

counsel.

the

held

be used against him; and had

his right to

The court acknowledged

assistance of

that

in

case,

the assistance of

that Gray had been

counsel when

this

been advised

he gave his

this fifth

factor

without

statement, but

was

heavily

____________________

defendant

was advised

or

knew that

he was

not

required to

make any statement and

statement could
or not

be used against him,

such defendant

questioning

that any such

of his

(4) whether

had been advised

right

to

prior to

the assistance

of

counsel; and (5) whether or not such defendant was

without the assistance of counsel

when questioned

and when giving such confession.

The

presence or

absence of

mentioned factors to
by the judge need

any of

be taken into

the above-

consideration

not be conclusive on the

issue

of voluntariness of the confession.

3.

18 U.S.C.
(c)

3501(c) states, in relevant part:

In any

criminal

States

. .

person

who is

person

was

prosecution

by the

United

a confession

made

or given

by a

therein, while

such

under

defendant
arrest

shall

inadmissible solely

because of delay

such

a magistrate

person before

. .

not be

in bringing
. if

such

confession was made or given by such person within

six

hours

immediately

other detention . . . .

-21-

following his

arrest

or

outweighed

by

the

other four

factors

and

by the

case's

that

Gray's

particular circumstances.

We

agree

with

the

district

court

statement was voluntary.

C. The "Carry" Issue:

_____________________

Cleveland and

U.S.C.

924(c)(1).

Gray pleaded guilty to

violating 18

That statute imposes a five-year prison

term

on anyone who, "during and in

violence

or drug trafficking

firearm."

opinion

18 U.S.C.

in

crime . . .

924(c)(1).

Bailey, they
______

relation to any crime of

both

After the Supreme Court's

sought

revocation of

convictions based on guilty pleas to the

Gray,

against whom

unsuccessful Motion

P. 35(c),

uses or carries a

judgment had not

924(c)(1) charges.

yet entered,

to Correct Sentence under

and Cleveland,

their

against whom judgment

filed an

Fed. R. Crim.

had entered

and whose direct appeal was already pending, filed an equally

unavailing

appeals were

our

motion

under

consolidated.

jurisdiction to

28

U.S.C.

2255.

The government

consider

on the

The various

does not dispute

merits Cleveland

and

Gray's claims that their guilty pleas are invalid in light of

Bailey.
______

Since we reject those claims, we do not address any

potential jurisdictional question stemming from Cleveland's

2255 appeal.

The broad definition of "use" formerly employed

this

circuit

and under

which

-22-

Cleveland

and Gray

by

pleaded

guilty was

Bailey.
______

unanimously disapproved

Stating the

accordance

by the Supreme

need to interpret

with their

"ordinary

Court in

statutory terms

or natural"

meaning,

in

the

Court relied on the dictionary definition of "use" in holding

that

a conviction under the "use" prong of the statute could

only

be

firearm

upheld

during

if

the defendant

and in

relation

Bailey, 116 S. Ct. at 506-509.

______

the weapon is insufficient.

Under

convicted under

Bailey,
______

"actively

to

employed

the predicate

the

crime."

Mere possession or storage of

Id. at 508-09.
___

Cleveland

924(c)'s "use" prong.

the Mazda's trunk throughout

and

Gray

cannot

be

The guns remained in

the events in question; neither

Cleveland nor

Gray "actively

guilty

might

pleas

still,

employed" the firearm.

however, be

upheld

Their

under

the

statute's "carry" prong.

While

relative

its

did

to "carry," the

rationale

preserve

Bailey
______

for

S.

interpretation

the

requirements

Supreme Court stated

that part of

defining

a separate,

Bailey, 116
______

not

Ct. at

address

"use"

nonsuperfluous

507.

we enunciate

today,

being carried, e.g., when

____

display

during

a transaction,

it; and a

or

for

was

can be

an offender has

barters

to

"carry."

wrote, "Under

a firearm

firearm can

being used, e.g., when an offender

____

narrowly

meaning

The Court

without

without handling

more

the

used

a gun on

with a

firearm

be carried

without

keeps a gun hidden in his

-23-

clothing

Court

throughout a drug transaction."

remanded the

defendant could

for

case for

determination of

be convicted under the

having a gun inside

Id. at
___

507.

The

whether a

"carry" prong either

a bag in a locked

car trunk or for

having an

unloaded firearm in

bedroom closet.

a locked footlocker

inside a

Id. at 509.
___

Bailey leaves us with

______

two questions concerning the

proper interpretation of "carry."

First, must a firearm

be

on a suspect's person to be "carried" or can one also "carry"

a firearm in a vehicle?

in

a vehicle, must

Second, if one can "carry" a firearm

the weapon be

immediately accessible to

the defendant to be "carried"?

The

first question

is easily

answered.

We have

already held post-Bailey that a firearm can be "carried" in a

______

boat, a conveyance

purposes from a

that seems indistinguishable for

land vehicle like a

car.

present

United States v.
______________

Ramirez-Ferrer, 82 F.3d 1149 (1st Cir.), cert. denied, 117 S.

______________
____________

Ct. 405 (1996).

This

"carry"

accords

both

with

our

pre-Bailey
______

cases and with the holdings of the other circuits to

have considered

States
______

result

v.

Plummer,
_______

(acknowledging

presence of

or on the

this issue

the

964

post-Bailey.
______

F.2d

1251,

defendant-driver's

See, e.g., United

__________ ______

1252-54

(1st

concession that

Cir.)

the

a gun in his vehicle either in the driver's seat

front passenger seat

-24-

was sufficient to

establish

that he had "carried" a gun under

506

924(c)(1)), cert. denied,

____________

U.S. 926 (1992); United States v. Eaton,

______________
_____

511-12

(1st

Cir.

1989)

(acknowledging

890 F.2d 511,

the

defendant's

concession that he had "carried" a gun for the purposes

924(c)(1) when the gun had been

truck he

under the front seat of

was driving), cert. denied, 495

_____________

United States
______________

(upholding a

v. Giraldo,
_______

80

F.3d 667,

U.S. 906

677-78

of

the

(1990);

(2d Cir.)

924(c)(1) conviction for "carrying" a gun in a

car), cert. denied, 117

____________

Mitchell,
________

15,

S. Ct. 135 (1996); United States v.

______________

No. 95-5792, 1997 WL 12115, at *2-4 (4th Cir. Jan.

1997) (same); United States v. Fike, 82 F.3d 1315, 1327_____________

____

28 (5th Cir.) (stating that a gun may be "carried" in a car),

cert. denied,
____________

117 S.

Riascos-Suarez,
______________

73 F.3d

denied, 117 S. Ct.

______

F.3d 928,

Willis,
______

Ct.

F.3d

denied, 117 S. Ct.

______

616, 623

United States
_____________

(6th Cir.)

1371,

Cir. 1996)

Molina, 102
______

(same); United States

_____________

1377-79 (8th

Cir.)

v.

(same), cert.
_____

136 (1996); United States v.

_____________

930-32 (7th

89

241-42 (1996);

(same),

273 (1996); United States v.

_____________

v.

cert.
_____

Staples, 85
_______

F.3d 461, 464 (9th Cir.) (same), cert. denied, 117 S. Ct. 318
____________

(1996);

United States v. Miller, 84 F.3d 1244, 1256-61 (10th

_____________
______

Cir.) (same),

cert. denied,
____________

117 S.

Ct. 443

(1996); United
______

States v. Farris, 77 F.3d 391, 395 (11th Cir.) (upholding a

______
______

924(c)(1) conviction

for "carrying" a

denied, 117 S. Ct. 241 (1996).

______

-25-

gun in a

car), cert.
_____

On the

second question, we agree

Seventh and Tenth Circuits that

vehicle for

with the Fourth,

a gun may be "carried"

the purposes of

in a

924(c)(1) without necessarily

being

immediately accessible

being

transported.

to the

defendant while

it is

See Miller, 84 F.3d at 1260; Molina, 102

___ ______
______

F.3d at 930-32; Mitchell, at *3.

________

Since

questions

prong.

Bailey,
______

concerning

the

this

scope

Circuit

of the

In United States v. Manning, 79

_____________
_______

has

twice

statute's

faced

"carry"

F.3d 212 (1st Cir.),

cert. denied, 117 S. Ct. 147 (1996), we held that carrying a

_____________

briefcase

containing

paraphernalia

requirement.

was

a gun,

pipe

sufficient

bombs,

to

In Ramirez-Ferrer,
______________

drugs, and

fulfill

the

drug

"carry"

already noted, we held that

a loaded revolver covered by a T-shirt within the defendant's

reach on

a cocaine-laden boat

travelling

was

924(c)(1).

In neither

whether

being

a firearm

travelling

"carried"

the

purposes

case, however, did we have

in

a vehicle

in

which a

of

to decide

defendant

is

924(c)(1).

Since some

circuits have, since

rely upon their pre-Bailey

______

ours as

for

defendant was

needs to be within easy reach to be "carried" for

the purposes of

to

upon which the

well, but find

Bailey, continued
______

"carry" case law,

no case that

is entirely

we look at

on point.

See, e.g., United States v. Castro-Lara, 970 F.2d 976, 982-83

_________ _____________
___________

(1st

Cir. 1992)

(upholding a

conviction under

924(c)(1)

-26-

when the gun was in a briefcase in a locked car trunk without

specifying whether

"use" or "carry"

the

conviction was

under the

prong), cert. denied, 508

____________

statute's

U.S. 962 (1993);

Plummer,
_______

964 F.2d

at 1252-54 (acknowledging

the defendant-

driver's concession that the presence of a gun in his vehicle

either

in the driver's seat

or on the

front passenger seat

was sufficient to establish that he had "carried" a gun under

924(c)(1));

Eaton, 890
_____

defendant's concession

purposes of

F.2d at 511-12

that he had

(acknowledging the

"carried" a gun

for the

924(c)(1) when the gun had been under the front

seat of the truck he was driving).

"When a word is not defined by statute, we normally

construe it in accord with its ordinary or natural

meaning."

Smith v. United States, 508 U.S. 223, 228 (1993).

_____
_____________

In Bailey,
______

the Supreme

Court

turned

to

the dictionary

for

help

in

determining

the meaning of "use," Bailey, 116 S. Ct. at 506,

______

so we do the same with "carry."

Webster's Third New International Dictionary of the

___________________________________________________

English Language Unabridged 343 (3d ed. 1971) defines "carry"

___________________________

as, "1:

to move

one's hands or

dragging:

another

while supporting

arms):

sustain as a

place."

move an

definitions of the word

vehicle or

in

appreciable distance without

burden or

Webster's
_________

(as in a

load and bring

goes on

to

list

along to

many

other

and then, in differentiating "carry"

from some of its synonyms, states:

-27-

CARRY indicates moving to a location some

distance

away

maintaining

while

off

the

supporting
ground.

or
Orig.

indicating movement by car or cart, it is

a natural word to
and

loads

on

use in ref. to cargoes

trucks,

wagons,

planes,

ships, or even beasts of burden.

Id.
___

This

definition,

therefore,

clearly

includes

transport of a firearm by car; the concept of

the

carried

item

is within

reach

plays

the

whether or not

no

part in

the

definition.

Black's Law Dictionary 214 (6th ed.

_______________________

1990) defines

"carry" as, "To bear, bear about, sustain, transport, remove,

_________

or convey.
______

watch

To have or bear upon or about one's

or weapon;

locomotion not

(emphasis supplied).

phrase "carry arms

bear, or

person, as a

being essential

However, Black's
_______

or weapons" more

. .

. ."

defines the specific

narrowly as, "To

wear,

carry them upon the person or in the clothing or in

a pocket, for the purpose of use, or for the purpose of being

armed

and ready for offensive or defensive action in case of

a conflict with another person."

The latter

Black's
_______

Id.
___

definition of

"carry arms

or

weapons" limits

at least

"carrying" to the defendant's

implies accessibility.

which have read an

"carry" under

However,

even the circuits

immediate accessibility requirement

924(c)(1)

have never limited

language to "carrying" a firearm on the person.

circuits, like

person and so

the others

to confront

-28-

into

the statutory

Indeed, such

the issue,

have all

upheld convictions for

"carrying" a

weapon in a

car.

See
___

United States v. Cruz-Rojas, 103 F.3d 283, 286 (2d Cir. 1996)
_____________
__________

(remanding

two "carry"

under a car's dashboard

Riascos-Suarez,
______________

73

convictions

to determine

if a

gun

was accessible to either defendant);

F.3d

at

623

(upholding

"carry"

conviction when the gun was in a car near the driver's seat);

United States v. Willett, 90 F.3d 404, 406-07 (9th Cir. 1996)

_____________
_______

(holding

that

gun

transported in

car

was "carried"

because it was easily accessible).

We

strongly doubt

automobiles in today's

the

basic

meaning

of

given the

omnipresence

world and in drug dealing,

"carry" as

including

of

and given

transport

by

vehicle

that Congress, in prescribing liability for anyone

who "uses

or carries" a firearm

drug trafficking

offense, meant

during or in relation

to exclude a

to a

defendant who

transports the gun in his car, rather than on his person, for

use

in a drug transaction.

restricted definition

Hence the Black's Law Dictionary

______________________

of the phrase "carry

arms or weapons"

seems inapposite here.

It is

true,

of

course,

that

to

come

under

924(c)(1), "the firearm must have some purpose or effect with

respect

to

the

drug

trafficking crime;

its

presence

or

involvement cannot be the result of accident or coincidence."

Smith,
_____

508

U.S.

firearm's immediate

at

238.

In

certain

accessibility to

circumstances,

defendant might

be

-29-

relevant to determining

"during

always be

"during

not he

was carrying

it

and in relation to" a drug trafficking crime, as the

statute requires.

not

whether or

18 U.S.C.

924(c)(1).

instantly accessible in

But a firearm need

order to

be carried

and in relation to" a drug trafficking crime.

Here,

the

evidence shows that the defendants

had placed the three

firearms in question in the Mazda's trunk and, when arrested,

were carrying them for the purpose of using them to rob their

suppliers

during

Evidence of

nexus

to

ongoing

drug

this purpose plainly

the drug

whether the

seated in

the

the car

at

offense

within the

the time

crime.

demonstrated the necessary

trafficking

guns were

trafficking

wholly apart

immediate reach

from

of those

they

were stopped

Fourth,

Seventh,

by

the

agents.

As

noted

Circuits have

accessible

above, the

held that

a gun does

to be "carried" in

not need to

a vehicle.

and Tenth

be readily

See Mitchell, at
___ ________

*2-4; Molina, 102 F.3d at 930-32; Miller, 84 F.3d at 1256-61.

______
______

Other circuits, while

issue

one

adopting the

Ortuno,
______

way or

the other,

same approach.

952 F.2d

not explicitly deciding

appear

See
___

98, 103-04 (5th

to be

leaning toward

United States
_____________

Cir.) (a

the

v. Pineda_______

pre-Bailey case
______

holding that the circuit's cases requiring a showing that the

gun was within the defendant's reach during the commission of

the drug offense did not apply

when the gun was "carried" in

-30-

a vehicle), cert. denied, 504 U.S.

____________

928 (1992); United States

_____________

v. Fike, 82 F.3d 1315, 1327-28 (5th Cir. 1996) (a post-Bailey

____
______

case upholding a defendant's conviction under

"carrying"

a gun that was within his

stating that

v. Rivas,
_____

denied,
______

F.3d

85

924(c)(1) for

reach in a car but not

accessibility was a requirement); United States

_____________

F.3d

193,

117 S. Ct. 593

1371, 1377-79

194-96 (5th

Cir.)

(same),

(1996); United States

_____________

(8th Cir.

1996) (relying

cert.
_____

v. Willis, 89
______

on pre-Bailey
______

case law to hold that transporting a firearm in the passenger

compartment of a

vehicle satisfies

the "carry"

prong of

924(c)(1) but

not

United States
_____________

v. Caldwell, 97
________

1996)

(upholding a

prong for

addressing the

weapon's

accessibility);

F.3d 1063, 1068-70

conviction under

(8th Cir.

924(c)(1)'s

"carry"

a case in which the defendant's gun was in a car's

hatchback, an

area the court

regarded as

within the

car's

occupants' reach); United States v. Farris, 77 F.3d 391, 395

______________
______

(11th

Cir. 1996) (relying on pre-Bailey case law to uphold a

______

924(c)(1) conviction for a defendant who was sitting in the

back

seat of a car while the

glove compartment

but not

firearm in question was in the

discussing whether

the defendant

could easily have reached the gun).

We

recognize

that the

Second,

Sixth,

and Ninth

Circuits have

taken a contrary position,

firearms be immediately accessible.

requiring that the

See Giraldo, 80
___ _______

F.3d at

-31-

676-78; Riascos-Suarez,
______________

at 464.

73 F.3d at 623-24;

Staples, 85 F.3d
_______

We find the reasoning of these courts unpersuasive.

In Giraldo,
_______

the Second Circuit

relied entirely on

its pre-Bailey case United States v. Feliz-Cordero, 859 F.2d

______
______________
_____________

250 (2d Cir.

1988), in holding that

a gun transported

in a

vehicle must be immediately accessible to be "carried."

But

Feliz-Cordero merely stated that

_____________

literal meaning.

of

"carry,"

required

when

"carry" should be given its

The court thought that

the "carrying"

was

the literal meaning

done

by

a vehicle,

the gun to be within reach during the commission of

the drug offense.

Feliz-Cordero, 859 F.2d at 253.

_____________

The court

did not refer to any authority for this proposition and cited

to

only one case, United States v. Brockington, 849 F.2d 872

_____________
___________

(4th Cir. 1988).

Brockington does
___________

not so much as mention an

immediate accessibility requirement, nor does

meaning of "carry."

The only

this issue is that that

of

a taxi cab

it discuss the

relevance Brockington has

___________

panel upheld the "carry"

passenger who had

to

conviction

a loaded pistol

under the

floormat beneath his seat.

The

Sixth Circuit

immediate availability

admonitions

in

Bailey
______

in Riascos-Suarez
______________

requirement from the

that

"use"

must

inferred the

Supreme Court's

mean

more

than

"possession," Bailey, 116 S. Ct. at 508, and that a defendant

______

could not

weapon, id.
___

be charged under

The easy reach

924(c)(1) for mere storage of a

requirement, the Riascos-Suarez

______________

-32-

panel

reasoned,

is necessary

possession and storage.

We disagree.

easy

reach

"possess."

requirement

to

distinguish

"carry" from

Riascos-Suarez, 73 F.3d at 623.

______________

We question

would

the degree to

differentiate

which an

"carry"

from

More importantly, we agree with the Tenth Circuit

that the distinguishing characteristic

of "carry" is not the

instant

availability of the item

the item

is being

carrier,

either

moved from

The

primarily

Hernandez,
_________

that a

its

924(c)(1)),

with

Hernandez
_________

panel

the

decision

opinion

1253, 1256-58

to

toolbox was

looked

"carry."

be

"carried"

to

But

find the

its

in

in

aid

of

the

some

Staples relied
_______

United States
______________

(9th Cir.

in stating that a firearm

for use

of

earlier

a locked

available

meaning

Circuit's

80 F.3d

gun in

or

to another by

See Miller, 84 F.3d at 1260.

___ ______

Ninth

on

one place

personally

appropriate vehicle.

carried, but the fact that

v.

1996) (holding

not "carried"

under

had to be immediately

in

vehicle.

ordinary

quotation

from

or

The

natural

Webster's
_________

definition

of "carry,"

definition's references

supra, was
_____

to vehicles.

from Black's definition of the

_______

selective,

The

omitting the

court also quoted

single phrase, "carry arms or

weapons," supra, and cited the Sixth Circuit's Riascos-Suarez

_____
______________

opinion.

As we have discussed, however, the ordinary meaning

of the term "carry" includes transport by vehicle and affords

no basis for imposing an accessibility requirement.

-33-

Turning to

Gray pled

relation

the case before us,

both Cleveland and

guilty to using or carrying a weapon during and in

to a

drug trafficking

offense.

They do

not now

contend, nor could they, that the three loaded handguns found

in the trunk of their car

unrelated

committing

Cleveland

Gray

to

at

the

drug

the time

admitted at

intended to use

suppliers.

924(c)(1)

Their

alongside rope and duct tape

trafficking

they

the guns to

charge consists

they

were apprehended.

the suppression

challenge to

offense

he and

drugs from their

their convictions

solely of

were

In fact,

hearing that

rob the

were

the claim

on the

that, after

Bailey, they can

______

prong

and that

require

the

not be convicted under

a conviction under

the guns to have

standard

definition

"carried," and as

the statute's "use"

the "carry"

prong would

been easily accessible.

of

"carry" the

we can see no

guns

As under

were

basis for holding

being

that the

guns' lack of instant accessibility precluded them from being

"carried," we affirm

Cleveland's and Gray's

violations of 18 U.S.C.

Affirmed.
________

924(c)(1).

convictions for

-34-