Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 08-18-2021
Case Style:
United States of America v. JOSÉ CENTENO-GONZÁLEZ
Case Number: 17-1367
Judge: Jeffrey Robert Howard
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Alexander L. Alum, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Velez, United States Attorney, Marian
E. Bauzá-Almonte, Assistant United States Attorney and Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, were on brief.
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with a unlawful possession of a firearm charge.
Because Centeno challenges his conviction on various
grounds, we will "provide a more or less neutral summary of the
key relevant evidence presented at trial." See United States v.
Flores-Rivera, 787 F.3d 1, 9 (1st Cir. 2015). According to the
testimony at trial, in the early evening hours of May 6, 2015, a
dispatch officer at the municipal police department in Juncos,
Puerto Rico issued a radio call alerting officers that there had
just been gunfire at Tite Curet Street in Urbanization Estancias
de la Ceiba ("UEC"). More specifically, the dispatch officer
stated that she had received two separate civilian calls reporting
the shooting and had heard detonations over the phone. The
dispatch officer also communicated that a white Toyota Tundra truck
with tinted windows had transferred weapons to a grey vehicle, had
run over a person, and was now headed toward Road 198 and Las
Piedras.
Officers Nilka Figueroa-Negron ("Figueroa") and Luis
Rosa-Gonzalez ("Rosa"), who worked for the municipal police
department, heard the radio transmission. In response, Figueroa
and Rosa drove down Road 198 in the direction of UEC. As they
were driving down Road 198, Figueroa and Rosa spotted a white
Toyota Tundra with tinted windows heading towards them. Believing
that this car matched the description provided in the radio call,
Officer Rosa turned the police patrol car around with the intention
of stopping the Toyota Tundra.
Officer Rosa turned on the lights and siren while Officer
Figueroa used the loudspeaker to order the driver, who was Centeno,
of the Tundra to pull over. The Tundra stopped about six seconds
- 5 -
later. Officers Figueroa and Rosa stepped out of their police
vehicle and, with their weapons drawn, approached the Tundra. By
this point, two Puerto Rico Police Department ("PRPD") officers,
who had also received a radio transmission reporting gunfire at
UEC, had reached the scene. The PRPD officers ordered Centeno,
who was alone in the vehicle, to turn off the engine and lower the
window. Centeno lowered his window halfway and, approximately a
minute later, stepped out of the Tundra. The officers noted that
Centeno looked nervous and asked him where he was coming from; in
response, Centeno stated that he was coming from UEC, where he was
looking for a house to rent. The officers then placed Centeno on
the ground, and Officer Rosa handcuffed him. The parties both
agree that at this point, the stop had ripened into an arrest.
See United States v. Centeno-Gonzalez, 177 F. Supp. 3d 721, 729
n.5 (D.P.R. 2016).
Once Centeno had been secured, Officers Figueroa and
Rosa left to investigate the crime scene at UEC.1 Meanwhile, the
PRPD police officers remained with Centeno at the scene of his
1 During the suppression hearing, Officers Figueroa and Rosa
testified that, once they reached Tite Curet Street in UEC, they
were directed to the residence where the shooting took place.
Inside the residence, they found a man with several gunshot wounds
who was non-responsive. They did not find any evidence that
someone had been run over. Once the crime scene had been secured
and reinforcements had arrived, Officer Rosa returned to the
location where the Centeno had been pulled over and detained.
Centeno was not charged federally in connection with the homicide.
- 6 -
stop. Centeno watched as another officer arrived with a dog that
was trained in detecting firearms. While circling and sniffing
the exterior of the Toyota Tundra under the guidance of an officer,
the dog sat down, according to protocol and training, that
indicated that the dog had detected the scent of a firearm. The
Toyota Tundra was then sealed and towed, and Centeno was taken to
a detention center for processing.
The next day, officers obtained a warrant to search the
interior of the Toyota Tundra. While searching the vehicle,
officers found a hidden compartment in the dashboard near the
radio. Inside the compartment, officers found a firearm, magazines
for the weapon, a black glove, and two Ziploc bags with a creamcolored substance, among other things. Subsequent testing
indicated that the cream-colored substance contained cocaine. DNA
samples collected from the firearm and the glove were tested and
found to be consistent with Centeno's DNA.
II. PROCEDURAL HISTORY
On August 6, 2015, Centeno was indicted for possession
of cocaine base with intent to distribute, in violation of 21
U.S.C. §841; possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §924(c)(1)(A)(i);
and, possession of a firearm by a convicted felon, in violation of
18 U.S.C. §922(g)(1). In advance of trial, Centeno moved to
suppress all physical evidence seized from the vehicle and any
- 7 -
statements attributed to him after the stop because they
constituted the fruits of an unlawful arrest. He also contended
that the affidavit submitted in support of the warrant to search
his car contained false information and requested an evidentiary
hearing under Franks v. Delaware, 438 U.S. 154 (1978). Because
the motion did not make a substantial preliminary showing that the
statements made in support of the warrant application were
knowingly or recklessly false, the district court denied Centeno's
request for a Franks hearing. United States v. Centeno-Gonzalez,
No. 15-346 (FAB), 2015 WL 13729918 at *3 (D.P.R. Dec. 31, 2015).
A hearing was held, however, before a magistrate judge
on the question of the validity of Centeno's arrest. Id. at *1-
3. In its report and recommendations, the magistrate judge
reasoned that Centeno's arrest was unlawful and recommended the
suppression of "all tangible evidence gained following the
unlawful arrest." Id. at *17. The government timely objected.
Upon review, the district court denied the motion to suppress in
full, and the evidence obtained from the search was admitted at
trial.
During trial, the government also introduced a
stipulation and officer testimony regarding Centeno's prior
firearm conviction, including evidence that his prior conviction
was based on evidence that a firearm had been recovered from a
hidden compartment in the dashboard of Centeno's car. For his
- 8 -
part, Centeno called a witness who testified that the Toyota Tundra
was registered to her and had been purchased by her brother, who
had a prior drug conviction. Ultimately, the jury found Centeno
guilty of being a felon in possession of a firearm but could not
reach a unanimous verdict with respect to the drug possession
charge and the firearm possession in furtherance of drug
trafficking charge.
Centeno timely appealed.
III. THE MOTION TO SUPPRESS
In his primary challenge, Centeno contends that the
district court erred in denying his motion to suppress the evidence
found in the Toyota Tundra after law enforcement officers arrested
him, used a firearm-detecting dog to inspect the exterior of the
vehicle, and obtained a warrant to search the interior. Centeno
challenges the validity of each of these actions.2
When evaluating a motion to suppress, we review de novo
all legal conclusions, "including the district court's probable
cause and reasonable suspicion determinations, as well as its
ultimate decision to grant or deny the motion to suppress." United
States v. Tiru-Plaza, 766 F.3d 111, 115 (1st Cir. 2014) (citing,
2 The government argues that Centeno has waived any challenge
to the admission of evidence seized from the vehicle because he
did not object when that evidence was offered at trial. Centeno
fully litigated his motion to suppress and renewed this motion
during the trial. And on this record we see no basis for waiver.
- 9 -
among other authority, United States v. Crespo–Ríos, 645 F.3d 37,
41 (1st Cir. 2011)). The district court's factual determinations
are reviewed for clear error. Id. at 114-15. Throughout, we "give
appropriate weight to the inferences drawn by the district court
and the on-scene officers, recognizing that they possess the
advantage of immediacy and familiarity with the witnesses and
events." Id. at 115. Consequently, we "will affirm the district
court's decision if any reasonable view of the evidence supports
it." United States v. McFarlane, 491 F.3d 53, 56 (1st Cir. 2007).
A. The Arrest
Centeno argues first that the district court improperly
concluded that his arrest was supported by probable cause and,
therefore, was lawful. According to Centeno, the district court
relied on only the Toyota Tundra's proximity to the events and a
"generic" vehicle description while disregarding factors that cut
against probable cause. Under the weight of both the record below
and the pertinent case law, this argument crumbles.
As a preliminary matter, Centeno does not argue that it
would have been unreasonable for law enforcement officers to stop
his car and ask him a few questions. Indeed, the magistrate judge
found, and Centeno did not dispute, that the radio transmissions,
combined with the officers' observation that Centeno's car seemed
to match the description given to the dispatch officer, was enough
to provide reasonable suspicion to pull the car over and briefly
- 10 -
detain it. Centeno-Gonzalez, 2015 WL 13729918 at *5 (applying the
standard set in Terry v. Ohio, 392 U.S. 1 (1968); see also
Navarette v. California, 572 U.S. 393, 397-98 (2014) (holding that
an anonymous tip may, in some circumstances, provide officers with
reasonable suspicion to briefly stop and question a driver).
Instead, Centeno argues, even if the officers had
reasonable suspicion to stop him, the stop did not produce any
evidence that would have given the officers probable cause to
arrest him. See McFarlane, 491 F.3d at 56 ("An arrest does not
contravene the Fourth Amendment's prohibition on unreasonable
seizures so long as the arrest is supported by probable cause.").
As we have explained, probable cause exists where "police officers,
relying on reasonably trustworthy facts and circumstances, have
information upon which a reasonably prudent person would believe
the suspect committed or was committing a crime." United States
v. Burhoe, 409 F.3d 5, 10 (1st Cir. 2005). It does not require
law enforcement officers to have "an ironclad case . . . on the
proverbial silver platter." United States v. Diallo, 29 F.3d 23,
26 (1st Cir. 1994) (internal citations omitted). Instead, "[i]t
suffices if . . . a prudent law enforcement officer would
reasonably conclude that the likelihood existed that criminal
activities were afoot, and that a particular suspect was probably
engaged in them." Id. (quoting United States v. Chapdelaine, 616
F. Supp. 522, 526 (D.R.I. 1985), aff'd 795 F.2d 75(1st Cir. 1986));
- 11 -
see also Wong Sun v. United States, 371 U.S. 471, 479 (1963)
(holding that probable cause requires only a determination that
there is "evidence which would warrant a man of reasonable caution
in the belief that a felony has been committed"). Consequently,
probable cause is not a creature of certainty and does not require
either the level of proof needed to secure a conviction or even an
"unusually high degree of assurance." United States v. Clark, 685
F.3d 72, 76 (1st Cir. 2012); see also Maryland v. Pringle, 540
U.S. 366, 371 (2003) (explaining that probable cause "deals with
probabilities and depends on the totality of the circumstances").
Here, the district court determined -- and neither party
disputes -- that the moment of arrest was when Centeno exited the
Toyota Tundra and was lowered to the ground and handcuffed. At
that point, the officers had in their arsenal several important
pieces of information: 1) two separate civilian calls had provided
the dispatch officer with similar details regarding an active
shooting; 2) the dispatcher herself had overhead gunfire while on
the phone with those callers; 3) the officers observed Centeno
driving a vehicle that matched the description provided in the
phone calls while traveling away from UEC; 4) the officers spotted
Centeno close in time and place to the shooting; and, 5) when
asked, Centeno told officers that he had just left the exact area
of the shooting.
- 12 -
Taken together, this evidence provided the district
court with an adequate basis to conclude that officers had probable
cause to arrest Centeno. For starters, the officers had reason to
believe that criminal activity had occurred at UEC. The first
caller described seeing a man in a white Toyota Tundra with tinted
windows deliver firearms to a grey vehicle. That caller also
stated that she watched as two individuals from the grey vehicle
proceeded to shoot someone. No intellectual gymnastics are needed
to reach the conclusion that the officers' reliance on this
information was reasonable given the totality of the
circumstances, including the fact that the caller provided the
information contemporaneously. See Navarette, 572 U.S. at 399
(stating that the contemporaneous nature of a phone call reporting
criminal activity was a factor supporting the conclusion that an
anonymous tip was reliable).
Other pieces of information also connected Centeno to
the reported criminal activity. First, the vehicle that Centeno
was driving matched the multi-factored description that the
officers had been given. Both callers reported that a white Toyota
Tundra had been involved with the exchange of firearms. The first
caller added that the Toyota Tundra had tinted windows and its
occupant was a man. The second caller reported that the Tundra
was headed toward Juncos. Where the vehicle description includes
the vehicle's make, model, color, and window condition; the gender
- 13 -
of the vehicle's occupant; and the direction and route in which
the vehicle was traveling, the description can hardly be described
as "generic." In addition, Centeno's geographic and temporal
proximity to the crime scene further connected him to the criminal
activity. The officers spotted Centeno only two to four minutes
after receiving the radio call reporting the shooting, and Centeno
himself confirmed that he was coming from the area where the crime
took place. To be sure, the officers never saw Centeno commit a
crime; the conduct they observed was entirely innocent but was
enough to corroborate the information provided by the two callers.
See Illinois v. Gates, 462 U.S. 213, 241-42 (1983) (holding that,
when making a warrantless arrest, officers "may rely upon
information received through an informant . . . so long as the
informant's statement is reasonably corroborated (internal
quotations and citation omitted))"; McFarlane, 491 F.3d at 57 ("A
statement from a source can constitute the basis for probable cause
. . . so long as there is a sufficient basis for crediting the
source's reliability.").
Moreover, while any one of these factors likely would
not have been enough on its own to establish probable cause, it is
their cumulative impact with which we are concerned. See
McFarlane, 491 F.3d at 56 (recognizing that courts resolving
challenges to probable cause "should evaluate the totality of the
circumstances" (citing United States v. Jones, 432 F.3d 34, 41
- 14 -
(1st Cir. 2005))). For this reason, Centeno's argument, which
turns on excessively slicing and dicing the information that was
before the officers, falls flat. The crucial question for us is
not whether every single, conceivable factor before the officers
gestured at the defendant's criminality; instead, the question is
whether the factors that meaningfully linked the defendant with
the criminal activity, when taken together, are sufficiently
specific and compelling to establish probable cause. We conclude,
on the record before us, that the factors that linked Centeno to
the reported shooting in UEC were sufficient to support a finding
of probable cause. See, e.g., United States v. Dion, 859 F.3d
114, 132-33 (1st Cir. 2017) (rejecting defendant's argument that
"certain other facts deserved more weight than they received from
the district court['s]" probable cause determination and declaring
that "evidence in the record supports the district court's
findings, and that is that").
We also note that Centeno's contentions that there was
no physical record of any phone calls describing a white Toyota
Tundra (though there was suppression-motion testimony on that
point) and that there was no hit-and-run do not defeat a finding
of probable cause. In determining probable cause, we consider
only the information available to the officers at the time of the
arrest. See Diallo, 29 F.3d at 25. Even if the officers made a
mistake of fact, an arrest will still be justified if the mistake
- 15 -
was "objectively reasonable" at the time. United States v. Coplin,
463 F.3d 96, 101 (1st Cir. 2006); see also United States v.
Ruidiaz, 529 F.3d 25, 29 (1st Cir. 2008). Here, at the time of
the arrest, the officers had no reason to believe that the
information they received from the dispatch officer was false or
misleading. They certainly had no reason to believe, as Centeno
contended at trial, that the dispatch officer never actually
received any phone calls reporting the crime or that the phone
calls never actually described the vehicle involved.
Considering the totality of the circumstances, then, we
find no error in the district court's determination that Centeno's
arrest was supported by probable cause.
B. The Dog Sniff
Centeno also argues that the officers' use of a firearmdetecting dog to inspect the outside of the Toyota Tundra after
his arrest constituted an unlawful search that violated the Fourth
Amendment. Because we have already concluded that his arrest was
lawful, we need not address his first contention -- that the dog
sniff was tainted by an unlawful arrest. We focus instead on his
second contention -- that the dog sniff constituted an unreasonable
search.
As a threshold matter, Centeno's Fourth Amendment
challenges to law enforcement actions that were directed at the
Toyota Tundra require a threshold finding. There can only be a
- 16 -
Fourth Amendment violation where the complainant had an
expectation of privacy in the item that was searched. See Rakas
v. Illinois, 439 U.S. 128, 133-34 (1978); see also United States
v. Almeida, 748 F.3d 41, 47 (1st Cir. 2014) (discussing the factors
courts look at to determine "whether a person has a reasonable
expectation of privacy in a vehicle," and therefore, has standing
to challenge the admission of evidence found in that vehicle). The
government here argued before both the district court and this
court that Centeno lacked a reasonable expectation of privacy in
the vehicle and therefore could not object to the introduction of
evidence found in the vehicle. However, it did not present this
argument to the magistrate judge, meaning there were no findings
of fact on this question. Consequently, the district court
concluded that, since Centeno's motion to suppress failed on the
merits, it would assume without deciding that he had standing to
bring such a motion. Centeno, 177 F. Supp. 3d at 727-28. Because
we affirm the district court's ruling on the merits, we will follow
its lead and assume, without deciding, that Centeno has a
reasonable expectation of privacy in the vehicle.
The question of whether a firearm-detecting dog's sniff
of the exterior of a vehicle amounted to a search under the Fourth
Amendment is a matter of first impression in this circuit.
However, because we conclude that the dog sniff was reasonable and
was supported by probable cause, we need not resolve this question.
- 17 -
See United States v. Mayendia-Blanco, 905 F.3d 26, 37 (1st Cir.
2018) (noting that "[t]he simplest way to decide a case is often
the best" (quoting Stor/Gard, Inc. v. Strathmore Ins. Co., 717
F.3d 242, 248 (1st Cir. 2013))).
When the dog sniff took place, the officers not only had
probable cause to believe that Centeno was involved in criminal
activity at UEC, they also had confirmation from Officer Rosa that
someone had been shot and killed at UEC. As a result, the same
factors that gave the officers probable cause to arrest Centeno
also gave the officers probable cause to inspect the vehicle. And,
the manner in which the officers inspected the vehicle was
reasonable given the circumstances; as the Supreme Court has
observed, a canine sniff is "limited both in the manner in which
the information is obtained and in the content of the information
revealed." United States v. Place, 462 U.S. 696, 702 (1983). Any
invasion of privacy, then, is minimal. Furthermore, because he is
"[t]he driver of a car on a public highway[,] [Centeno] is
considered to have a diminished expectation of privacy with regard
to his vehicle." United States v. Rodriguez-Morales, 929 F.2d
780, 788 (1st Cir. 1991); see also Arizona v. Gant, 556 U.S. 332,
343 (2009) ("[C]ircumstances unique to the vehicle context justify
a search incident to a lawful arrest when it is reasonable to
believe evidence relevant to the crime of arrest might be found in
the vehicle." (internal quotations and citation omitted)).
- 18 -
We therefore conclude that the dog sniff was reasonable.
C. The Search Warrant
Centeno also raises two distinct challenges to the
warrant that the officers obtained to search the interior of the
vehicle. We discuss each challenge in turn.
1. Probable Cause
First, Centeno contends that the affidavit underlying
the search warrant failed to establish probable cause because 1) it
stated that "objects" were transferred between the vehicles,
instead of specifically identifying those objects as guns; 2) it
failed to specify what the dog detected; and 3) it failed to reveal
whether the dog was adequately trained or certified. Because
Centeno did not argue, or even mention, the question of the dog's
training and certification in his original motion to suppress,
this argument is waived. United States v. Crooker, 688 F.3d 1, 10
(1st Cir. 2012). Though the other two arguments were only hinted
at in the district court, we will nevertheless consider and reject
them on their merits.
To survive appellate review, a "warrant application must
demonstrate probable cause to believe that (1) a particular person
has committed a crime (the 'commission' element), and
(2) enumerated evidence of the offense will be found at the place
to be searched (the 'nexus' element)." United States v. Beckett,
321 F.3d 26, 31 (1st Cir. 2003) (citing United States v. Zayas
- 19 -
Diaz, 95 F.3d 105, 110–11 (1st Cir. 1996)). We evaluate the
affidavit "in a practical, common-sense fashion and accord
considerable deference to reasonable inferences the [issuing
judicial officer] may have drawn from the attested facts." Id.
(quoting United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002)
(alterations in original). In light of the "great deference" that
is owed, we reverse a magistrate's decision to issue a search
warrant "only if there is no substantial basis for concluding that
probable cause existed." United States v. Procopio, 88 F.3d 21,
25 (1st Cir. 1996) (quoting Gates, 462 U.S. at 238-39) (cleaned
up).
This standard is fatal to Centeno's challenge, which
essentially boils down to his discomfort with the fact that the
word "guns" was not expressly used in the affidavit. The problem
for Centeno, however, is the language that was employed in the
affidavit reasonably supported the inference that the object that
was transferred at the scene of the crime, and the object that the
dog detected in the car, was a firearm. The affidavit indicates
that an officer spoke with an anonymous caller who reported that
a white Toyota Tundra transferred "objects" to a grey Hyundai and
that, shortly after that transfer, detonations were heard. That
scenario -- particularly the presence of detonations -- permitted
a reasonable inference that the "objects" passed were the guns
that created the detonations. The affidavit goes on to indicate
- 20 -
that a Tundra was then stopped close in place and time to the
detonations. The affidavit also specifically identifies Centeno
as the driver of the Tundra and indicates that, when stopped,
Centeno told officers that they could not search the Tundra without
a judicial order. The affidavit states that a law enforcement dog
then "inspect[ed] the vehicle going around the same" and "mark[ed]
the lateral doors."
Considering the totality of the information in the
affidavit, we see nothing improper in the issuing judge having
drawn an inference that the item that the dog detected was a gun.
Nor do we see anything improper in the issuing judge's conclusion
that the affidavit establishes sufficient probable cause to
authorize a search of the vehicle.
Moreover, in issuing the affidavit, the judge
specifically stated that officers were authorized to search the
vehicle "for weapons and any other violations of the law." In
light of this statement, then, it seems clear that a reasonable
officer would have understood that the warrant was valid. See,
e.g., Stanford v. Texas, 379 U.S. 476, 485 (1965) (holding that,
to be valid, a warrant must be supported by probable cause and
must "particularly describe the things to be seized." (quoting
Marron v. United States, 275 U.S. 192, 196 (1927))). Even if the
warrant was deficient, it was not so facially invalid as to require
- 21 -
suppression of the evidence discovered pursuant to its terms.3
United States v. Leon, 468 U.S. 897, 923 (1984).
2. The Claim of False Information
Centeno maintains, as he did below, that the search
warrant was granted in reliance on false information in violation
of Franks v. Delaware, 438 U.S. 154, 155-56 (1978). According to
Centeno, the hit-and-run that is mentioned in the search warrant
affidavit never occurred, and the content from the anonymous phone
calls was greatly misrepresented. The magistrate judge denied
Centeno's request for a Franks hearing on two grounds: first,
because Centeno's complaints were "essentially a discovery issue";
and second, because Centeno failed to provide an affidavit in
support of his request, as is required. Centeno, 2015 WL 13729918
at *3. The district court, in turn, stated that it was adopting
the magistrate's legal conclusion that "Centeno failed to meet his
burden of making a substantial preliminary showing to entitle him
3 We note that it is not entirely clear on this record that
law enforcement officers needed a warrant to search the car both
because there was a reasonable possibility that it contained
evidence related to the shooting, see generally Arizona v. Gant,
556 U.S. 332 (2009), and because it was lawfully impounded after
Centeno's arrest. See generally United States v. Davis, 909 F.3d
9 (1st Cir. 2018); United States v. Coccia, 446 F.3d 233 (1st Cir.
2006). Since the government has not sought to justify the search
on either basis, however, we will assume that a warrant was
required to search the car, and affirm on the basis that the
warrant at issue was valid.
- 22 -
to a Franks hearing." We conclude that the record presents no
legitimate basis for upsetting this determination.
In Franks, the Supreme Court carved out an important
avenue for defendants to challenge the veracity of the
representations supporting an application for a search warrant.
438 U.S. at 155-56. To be entitled to an evidentiary hearing under
Franks, a defendant must make "a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in
the warrant affidavit[.]" United States v. Graf, 784 F.3d 1, 3
(1st Cir. 2015) (quoting Franks, 438 U.S. at 155–56). In addition,
for the defendant to be entitled to relief, "the allegedly false
statement [must be] necessary to the finding of probable cause."
Id. (quoting Franks, 438 U.S. at 155–56). On appeal, this court
"reviews the denial of a Franks hearing for clear error." United
States v. Reiner, 500 F.3d 10, 14 (1st Cir. 2007). Clear error
"exists only when we are 'left with the definite and firm
conviction that a mistake has been committed.'" United States v.
Hicks, 575 F.3d 130, 138 (1st Cir. 2009) (quoting United States v.
Castillo, 287 F.3d 21, 25 (1st Cir. 2002)).
We find no clear error here. We have made abundantly
clear that, because "[a]n application 'supporting a . . . warrant
is presumptively valid,'" it is incumbent on the defendant to show
that he is entitled to a Franks hearing. United States v. Barbosa,
- 23 -
896 F.3d 60, 67 (1st Cir. 2018) (quoting United States v. Gifford,
727 F.3d 92, 98 (1st Cir. 2013)). The Supreme Court itself stated
that "allegations of deliberate falsehood or of reckless disregard
for the truth . . . must be accompanied by an offer of proof."
Franks, 438 U.S. 154 at 171. "Affidavits or sworn or otherwise
reliable statements of witnesses should be furnished, or their
absence satisfactorily explained." Id. Without explanation,
Centeno failed to provide any evidence or even an affidavit in
support of his request for a Franks hearing. Even after the
magistrate judge expressly pointed to the lack of an affidavit in
denying Centeno's request, Centeno made no attempt to correct the
inadequacy. His offer at trial of expert testimony regarding the
anonymous phone calls is not enough to make up for this deficiency.
In these circumstances, the decision to deny the hearing does not
rise to the level of clear error.
As to Centeno's contention that the failure to
adequately request a Franks hearing constituted ineffective
assistance of counsel, usually such claims "should be ventilated
in the trial court in the first instance." United States v. Wyatt,
561 F.3d 49, 52 (1st Cir. 2009). And we see no reason not to apply
the usual rule here. We pass no judgment on the merits of the
ineffective assistance of counsel claim; instead, the claim is
remitted to a petition for collateral relief pursuant to 28 U.S.C.
§ 2255, assuming Centeno chooses to file one.
- 24 -
IV. EVIDENTIARY ISSUES AT TRIAL
Centeno also argues that he is entitled to a new trial
because of a series of evidentiary rulings that he contends were
erroneous and that had the cumulative effect of depriving him of
a meaningful opportunity to present a complete defense. With a
cumulative error challenge, "[w]e review the rulings for abuse of
discretion before deciding what cumulative effect any errors may
have had." United States v. Perez-Montanez, 202 F.3d 434, 439
(1st Cir. 2000) (citing United States v. Cardales, 168 F.3d 548,
557 (1st Cir. 1999)). In doing so, we "must consider each such
claim against the background of the case as a whole, paying
particular weight to factors such as the nature and number of the
errors committed; their interrelationship, if any . . . ; and the
strength of the government's case." United States v. Sepulveda,
15 F.3d 1161, 1196 (1st Cir. 1993). Applying this standard to
Centeno's trial, we find no cumulative error. We outline our
pathway to this conclusion.
A. Evidence Regarding Centeno's Prior Arrest
Over the defense's objection, the district court
permitted the government to introduce testimony from a PRPD police
officer that, in June 2011, Centeno was arrested after he was
observed placing a firearm in a homemade, hidden compartment in
the dashboard of a vehicle. When officers searched that
compartment, they found Centeno's license along with pistol
- 25 -
magazines. Centeno now argues that the admission of this prior
bad act evidence constituted error. While we continue to require
district courts to carefully evaluate prior bad act evidence under
Federal Rules of Evidence 404(b) and 403 before admitting it, it
is apparent to us that, in this case, the district court did not
err in admitting the officer's testimony with respect to Centeno's
prior arrest.
To admit prior bad act evidence, a trial judge must first
determine that the proffered evidence has "a special relevance,
i.e., a non-propensity relevance," such as "motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident." United States v. Henry, 848 F.3d
1, 8 (1st Cir. 2017) (internal quotations and citations omitted).
Even then, the evidence is only admissible if its probative value
is not substantially outweighed by unfair prejudice under Rule
403. Id.
The government represented to the district court that
the testimony regarding Centeno's prior arrest was intended to
show that Centeno engaged in a specific pattern of storing firearms
in hidden vehicle compartments and, therefore, would have likely
been aware that there was a firearm hidden in the Toyota Tundra.
Further, Centeno's knowledge and lack of mistake were directly at
issue here; during trial, Centeno focused his defense on his
contention that he did know there was a hidden compartment that
- 26 -
contained firearms and that someone else had hidden the firearms
in the vehicle. Thus, the requirements of Rule 404(b) are
satisfied; evidence relating to Centeno's prior conviction went
directly to the question of his knowledge or lack of mistake rather
than to his propensity toward criminal activity.
However, even when initially consistent with Rule
404(b), prior bad act evidence may become troublesome if the
evidence itself is unfairly prejudicial or if it is admitted in
excess or misused by the government over the course of the trial.
The evidence here, however, was not presented in a way that posed
a risk that it would "lure the factfinder into declaring guilt on
a ground different from the proof specific to the offense charged."
Old Chief v. United States, 519 U.S. 172, 180 (1997). Evidence of
Centeno's prior arrest was offered to the jury in the form of
(relatively brief) testimony from a single witness, who was subject
to cross-examination. And, defense counsel was given the
opportunity to argue that the prior arrest was not, in fact,
probative of Centeno's knowledge in this case. Nor did the
government misuse evidence of Centeno's prior arrest. The
government's closing illustrates that it utilized the bad act
evidence in tight keeping with the special relevance upon which it
had been admitted:
[T]he fact that this Defendant has used hidden
compartments in the past goes to show that in
this particular case, this wasn't a mistake.
- 27 -
It wasn't an accident. He wasn't just merely
in the wrong place at the wrong time. He
clearly knows how to get access to hidden
compartments, and he clearly knows what he
wants to use them for. And what he wants to
use them for or his intent is to conceal things
that he is not supposed to have: [d]rugs,
guns, bullets, a drug ledger.
Such restrained use of prior bad act evidence is
consistent with our case law, especially when coupled with the
court's limiting instruction. At the close of the evidence, the
district court made clear to the jury that "[e]ven if you find
that the Defendant may have committed similar acts in the past,
this is not to be considered as evidence of character to support
an inference that the Defendant committed the acts charged in this
case." See United States v. Altvater, 954 F.3d 45, 55 (1st Cir.
2020) ("[W]e have a long-standing presumption that jurors follow
instructions," and, as a consequence, any prejudice resulting from
the admission of testimony related to the prior bad act may be
ameliorated by proper jury instructions. (internal quotations and
citation omitted)). Accordingly, there was no abuse of discretion
in the admission of officer testimony regarding Centeno's 2011
arrest.
Centeno also argues that the district court's purported
error in admitting this testimony was "compounded" by errors in
the jury instruction regarding the testimony. But Centeno concedes
that he did not object to the instruction during the trial and
- 28 -
that either error, in isolation, might not warrant reversal. Given
these concessions, Centeno's challenge to the jury instruction
sinks along with his argument that the admission of the testimony
relating to his prior arrest was erroneous.
B. Evidence Regarding Third Party's Prior Conviction
Next, Centeno argues that the district court erred by
preventing him from introducing testimony that the previous owner
of the Toyota Tundra, José Rondon-Bruno ("Rondon"), had several
prior convictions for both controlled substances and firearmsrelated offenses. This evidence, he contends, was material to his
argument that he did not know the Toyota Tundra had a concealed
compartment that contained a firearm.
During trial, Centeno called as a witness the registered
owner of the Toyota Tundra, Zoryant Rondon-Bruno ("Zoryant").
Zoryant testified that Rondon, her brother, was the one who
primarily used the Toyota Tundra; Zoryant had simply helped with
the purchase because Rondon did not have his documents up to date
at the time of purchase. Zoryant also testified that Rondon was
fatally shot a few months before Centeno's arrest in this case.
Centeno attempted to elicit testimony from Zoryant regarding
Rondon's criminal history. The government objected. In the end,
the district court permitted Zoryant to testify that Rondon had
been convicted of drug trafficking but did not allow Zoryant to
- 29 -
testify as to whether Rondon had been charged with possession of
a firearm.
Centeno now argues that the district court's decision to
prohibit Zoryant from testifying about Rondon's firearm conviction
constituted an abuse of discretion. In Centeno's view, the
exclusion of that testimony violated his right to present a
complete defense. Centeno puts no dressing on this general
assertion other than suggesting that there was a "reasonable
possibility" that introduction of Rondon's firearm-related arrest
would have created reasonable doubt.
While fundamental and robust, "a defendant's right to
present relevant evidence in his own defense 'is not unlimited,
but rather is subject to reasonable restrictions[,]'" including
the Federal Rules of Evidence. United States v. Diaz, 670 F.3d
332, 346 (1st Cir. 2012) (quoting United States v. Scheffer, 523
U.S. 303, 308 (1998)); see also Taylor v. Illinois, 484 U.S. 400,
410 (1988). Even when evidence is proffered by the defense, a
district court maintains "general discretion to exclude otherwise
relevant evidence 'if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, . . . or by considerations of undue delay [or] waste of
time.'" United States v. DeCologero, 530 F.3d 36, 60 (1st Cir.
2008) (quoting Fed. R. Evid. 403) (alterations in original).
- 30 -
When the government objected to a question by the defense
regarding Rondon's firearm history, the district court heard
extended argument from both sides at sidebar and repeatedly asked
Centeno about the purpose of introducing Rondon's prior
involvement with firearms. Despite this opportunity, Centeno
offered no particularized argument as to the relevance of a prior
firearms conviction, much less an argument as to Rule 403
balancing.
In these circumstances -- where the defendant has failed
before the district court and before us to present a fully formed
argument as to the admissibility, relevance, and import of the
contested evidence -- we must conclude that the district court
acted within its discretion in excluding the evidence. See, e.g.,
Old Chief, 519 U.S. at 183 n.7 (explaining that the defendant has
the burden of demonstrating abuse of discretion on his appeal).
C. Evidence Regarding Police Station Telephone Records
Finally, Centeno objects on appeal to the district
court's denial of his request to introduce testimony and records
from a custodian at a telephone company that serviced the Juncos
police station. According to Centeno, the evidence would have
shown that no civilian calls were received at the police station
between 6:30 and 7:30 P.M. on the day of Centeno's arrest, which
would, in turn, support his contention that the civilian calls
that the dispatch officer reported receiving did not occur as
- 31 -
claimed and there was never a hit and run. This argument fares no
better than the last.
Trial judges have "discretion under Rule 403 to exclude
. . . evidence if it would distract from the main issues of the
case." DeCologero, 530 F.3d at 60. Moreover, "[t]he decision on
whether a matter is collateral or material is within the district
court's discretion." Id. (citing United States v. Marino, 277
F.3d 11, 24 (1st Cir. 2002)).
In excluding the telephone records, the district court
explained that they "do[] not go to a matter of guilt or innocence,
because there is nothing here in the case about the murder or
whether someone was run over by the Tundra." The district court
stressed that this "case is only about a weapon and drugs inside
a secret compartment." It was well within the district court's
discretion to decide that: 1) the core question in this trial was
whether Centeno possessed the firearm and drugs found in the Toyota
Tundra; and that 2) the phone records were too tangential to
survive an objection under Rule 403. All of the charges before
the jury related to whether Centeno possessed the firearm and drugs
found in the Toyota Tundra. While the phone calls that initially
triggered police involvement were important to the motion to
suppress and could have been presented at that juncture, Centeno
has presented no compelling argument that the calls or the dispatch
officer's credibility were critical to the questions that remained
- 32 -
at trial. Indeed, the dispatch officer did not testify during the
trial, so there was no testimony of hers to impeach. We cannot
say on this record that the district court abused its discretion
in excluding this evidence. For the same reason, we cannot say
that the district court's refusal to allow evidence of the phone
records prevented Centeno from presenting a complete defense or
spared the government's case from "the crucible of meaningful
adversarial testing." Crane v. Kentucky, 476 U.S. 683, 691 (1986)
(internal quotations and citation omitted).
Because we do not find any error in the district court's
individual evidentiary decisions, Centeno's cumulative error claim
also fails.
Outcome: For the foregoing reasons, we affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: