USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 95-1707

UNITED STATES OF AMERICA,

Appellee,

v.

JAIME CALDERON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________
____________________

Before

Stahl, Circuit Judge,

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Aldrich, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

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____________________

Merin Chamberlain for appellant.

_________________

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

____________
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Gagnon, United States Attorney, was on brief, for the United States
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____________________

February 27, 1996

____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

jury

of

carjacking

and

Having been convicted

kidnapping,

Jaime

Calderon

by a

was

sentenced

to 30

supervised

verdict,

release

saying

suppressed and

motion

years of

imprisonment, and

thereafter.

that

certain

he should

to suppress,

He

now

evidence

challenges

should

have been given

that

the

five years

have

a hearing

superseding

of

the

been

on the

indictment

was

invalid, that there was insufficient evidence to convict, and

that

the

jury's

conviction

of

impermissibly inconsistent with

other

convict

counts.

and

There

none

of

committed, we affirm.

police

search was

careful

efforts

being

the

on

the

two

counts

its acquittal of him

more

than

asserted

police

to

having

a case in which

more than

the usual,

have

both

was

on two

ample evidence

errors

Indeed, this is

backed by

by

him

to

been

the

and the

belt

and

suspenders

less,

to support

concern

the search

for adherence

marks

to the

more, rather

than

procedural protections

afforded defendants.

The Crime
_________

On

following.

men

were

the evidence, the jury was entitled to find the

On August 31, 1994, Calderon heard that two young

selling

neighborhood

to newly

speakers

out of

in Nashua, New Hampshire.

stolen guns, Calderon

the speakers.

including

stereo

Jose

decided to take the

Hernandez,

-33

van

in

his

Emboldened by access

Calderon, age 33, recruited

his nephew

to

van and

three teenagers,

help

him.

When

Hernandez

originally balked,

called him a "chicken."

his uncle

excoriated him

The other two recruits, Angel Rivera

and Julio Sanchez,

approached the two young

and asked

would take them

place

if they

where

they

presence of police

Once

inside the

could

make

in the

purchase

officers who might

van,

and

Rivera

stereo salesmen

van to

a nearby

outside of

be looking for

and Sanchez

used

a gun

the

them.

and

chokeholds to force the two salesmen

where

they were

made to

struck one on the head

and told the

lie,

to the back of the van,

face down.

The

carjackers

with a gun, causing profuse bleeding,

two men that if

they ever went to

the police,

they would be hunted down at their homes and killed.

Rivera and Sanchez

at his

apartment,

where

Hernandez joined the

picked up Calderon in

he

assumed the

but

were

Calderon, who was in

of

driver.

group as the van left the neighborhood.

Because the salesmen were face down, they

Calderon,

role

the van,

aware

of

his

could not identify

presence

in

the

charge, gave instructions that

van.

"if the

kids get smart or something, . . . smack them around a little

just

to

calm

Massachusetts.

them

down."

The

van

was

driven

to

In Lowell, Calderon, a heroin addict, bought

heroin and

were

unloaded some

held with

of the speakers.

their faces

down for

The

three hours

two "kids"

and then

dumped into a wooded ditch in Billerica after one of them was

kicked in the head.

-44

Calderon's

defense at

trial

was

that he

simply

accepted a ride to Lowell, where he knew he could buy heroin,

and had no part in the carjacking or kidnapping.

the apartment

of Calderon's girlfriend,

A search of

however, turned

up

both the stolen speakers and Calderon.

In

the

interim,

disquieted

Hernandez

turned

himself in to the Nashua police and voluntarily cooperated.

The Search
__________

Based on information from

that

at least

apartment

of

one pair

Carmen

of the

Delgado,

a confidential informant

stolen speakers was

Calderon's

at the

girlfriend,

the

police went to Delgado's apartment at 11 p.m. on September 6,

1994.

At that time the police had an outstanding warrant for

Calderon's arrest for a failure

to appear on a motor vehicle

violation and Calderon

and carjacking.

was a prime suspect in the kidnapping

The officers

had reason

to believe

that

Calderon was living at the address.

The police

door, they asked

read

from

a consent

Two of

Delgado answered the

for permission to search.

officers then asked

did.

knocked and, when

form.

Delgado

gave consent.

her to sign the consent

the stolen speakers

An officer also

form, which she

were in plain

addition, there was a man in the living room.

The

sight.

In

The man gave a

name, not the name "Jaime Calderon," and four different dates

of birth.

An officer stepped outside to look at a photograph

-55

of Calderon, realized the man

and arrested him.

was Calderon, and went back in

Not knowing who or what was in the rest of

the apartment, the police searched the remainder.

two other speakers, of the

type stolen, in a bedroom closet.

A few hours later, the officers

detailed

search of the

They found

obtained a warrant to make a

apartment for weapons

and speakers.

Delgado gave the police inconsistent versions of her story to

the

effect

that

the

speakers

came

to

her

apartment

innocently.

Motion to Suppress
__________________

Calderon argues

denying

his

motion

to

that the district

suppress

evidentiary hearing and that on

have

been granted.

hearing is committed

and our review

court erred

evidence

without

in

an

the merits the motion should

The decision

to

hold an

evidentiary

to the discretion of the district court

is for abuse of that discretion.

See United
___ ______

States v. Lewis, 40 F.3d 1325, 1332 (1st Cir. 1994).

______
_____

Evidentiary

hearings

required

only where a

that the

evidence seized

on motions

defendant makes a

was the

to

suppress are

sufficient showing

product of

a warrantless

search that does not fall within any exception to the warrant

requirement.

facts,

Id.
___

The burden is on the defendant

"sufficiently

nonconjectural,

definite,

to enable

the

-66

specific,

court

to

to allege

detailed,

conclude

that

and

substantial claim

is presented."

Id.
___

(internal quotations

omitted).

Calderon argues that the motion to

have been

granted because Delgado

the search, and that it was

to take

evidence and

suppress should

gave no valid

consent to

error for the district court not

grant the motion.

Leaving

aside the

question of whether Delgado's consent was necessary under the

circumstances,1 we analyze

it.

Calderon posits

Spanish,

she could

the issue as Calderon

that because Delgado

not have

understood

has framed

primarily speaks

what the

English-

speaking police were saying in their late night, disorienting

appearance at

her apartment.

But this is a

supposition to

which Calderon gave

the

motion to

no flesh when he had

suppress.

support of the motion, not

of

mind

he

now

so

Calderon

filed no

affidavits in

even from Delgado, on whose state

heavily relies.2

prosecution, in opposing

the opportunity on

In

contrast,

the motion, provided copies

the

of the

____________________

1.

For example, the police believed Calderon to be living

with Delgado and had an arrest warrant for Calderon.

"Generally, the police do not need a search warrant to enter
a suspect's home when they have an arrest warrant for the
suspect."

United States v. Lauter, 57 F.3d 212, 214 (2d Cir.

_____________
______

1995); see also Payton v. New York, 445 U.S. 573, 603 (1980).
___ ____ ______
________

2.

On appeal, Calderon asserts for the first time that the

police officers had already crossed the threshold of the

apartment when they asked Delgado for her consent, and that
this was an additional factor showing coercion.

The

argument, not having been made before the district court, is

waived.

See United States v. Carvell, 74 F.3d 8, _, No. 95-

___ _____________

_______

1606, slip op. at 15 (1st Cir. Jan. 19, 1996).

-77

police

reports which told

a different story.

Delgado gave

the police varying versions of how the speakers came to be in

the

apartment.

There was

no indication

that she

did not

comprehend the explanation of the consent form or voluntarily

execute

it -- indeed, all indications

were to the contrary.

Calderon presented no evidence at all that Delgado's will was

"'overborne'" or

capacity

for

that she

suffered a

"'critically impaired

self-determination.'"

United States
______________

v.

Wilkinson, 926 F.2d 22, 25 (1st Cir.) (quoting Schneckloth v.

_________
___________

Bustamonte, 412 U.S. 218, 225 (1973)), cert. denied, 501 U.S.
__________
_____ ______

1211 (1991).

The

district

court

explained

its

denial

of

Calderon's motion to suppress without an evidentiary hearing:

Defendant
Delgado's

vaguely
consent

claims
was

otherwise ineffective,

coerced
but he

affidavit or

statement from

to

effect,

that

circumstances

makes no offer

any

other facts

or

Ms.
was

offers no
Ms. Delgado

describes

supporting

and

that

no

his assertion,

of proof relative to

that might

support his

assertion.

There is no basis to disturb the district court's decision.

Constructive Amendment
______________________

Calderon's

second argument

is

that

"constructive amendment"

to his indictment, in

his

Amendment

Fifth

and

Sixth

rights.

[A]mendment

requires that

a defendant

charge made

by

jury,"

the grand

-88

there was

violation of

"The

be tried

and the

Sixth

[F]ifth

only

on a

Amendment

"requires

that the defendant

cause of the

accusation."

be informed of

United States v.
_____________

the nature and

Kelly, 722 F.2d

_____

873, 876 (1st Cir. 1983), cert. denied, 465 U.S. 1070 (1984).
_____ ______

When Calderon was

first indicted on September

14, 1994, the

kidnapping charge omitted the phrase "for ransom or reward or

otherwise,"

U.S.C.

1201.

necessary element

Subsequently,

of

the offense.

the missing phrase was

See 18
___

added,

and that superseding indictment was presented to a grand jury

on

October 26,

1994,

which

disposes of Calderon's claim.

returned it.

And that

fact

Cf. United States v. Dunn, 758

___ _____________

F.2d

30, 35 (1st

where

Cir. 1985) (constructive

"the charging

terms of

the

either literally or in effect,

amendment occurs

indictment are

of

omitted)).

an improper constructive

actually
________

amended by

altered,

by prosecution or court after

_____

the grand jury has last passed on them"

__________________________________________

internal quotations

____

(emphasis added;

A defendant

amendment if the

resubmission to

cannot complain

indictment is

the grand jury.3

Cf.
___

United States v. Angiulo, 847 F.2d 956, 964 (1st Cir.), cert.
_____________
_______
_____

denied, 488 U.S. 852 (1988).

______

Sufficiency of Evidence
_______________________

Calderon

argues

that

there

was

insufficient

evidence for the

jury to have found

him guilty, and so

the

____________________

3.

Since Calderon's argument that it was error for the

district court to have denied his motion for the transcripts

of the second grand jury sitting is premised on there having
been an improper constructive amendment, we do not address
it.

-99

district court erred in not granting his motion for acquittal

under Fed. R. Crim.

P. 29.

"In

reviewing a sufficiency

of

the evidence claim we look at the evidence

in the light most

favorable to the

v. Cruz-Kuilan, _
___________

F.3d _, _,

verdict."

United States
_____________

Nos. 94-2217 & 95-1390,

slip op. at 6

(1st Cir.

Feb. 5, 1996).

The thrust of Calderon's challenge is that the jury

should not have believed

the version of the story,

to

two

his,

recounted

by

of

his

accomplices

confidential informant whose son was in prison.

was well

jury's province

and

The argument

fails.

It

choose

to believe the testimony of Calderon's accomplices --

in the face of his

within the

contrary

for it

to

cross-examination of their characters and

motives -- and to disbelieve Calderon's version of the story.

See
___

id.
___

"Credibility determinations are uniquely within the

jury's province,

evidence can

and we defer

support

to the jury's verdict

varying inferences."

Id.
___

if the

(citations

omitted).

Alleged Verdict Inconsistency

_____________________________

Calderon also argues that his carjacking conviction

cannot

stand

because

possession charges

element

of the

he

was

and firearm

carjacking

acquitted

of

possession was

offense.

the

firearms

an essential

In criminal

law "the

Supreme Court has made it clear that verdict inconsistency in

itself is not a sufficient basis for

-1010

vacating a conviction."

United States v.
______________

Lopez, 944
_____

F.2d

33, 41

(1st Cir.

1991)

(citing United States v. Powell, 469 U.S. 57 (1984), and Dunn

_____________
______
____

v. United States, 284 U.S. 390 (1932)).

_____________

This Court explained in Lopez:

_____

Verdict inconsistency

does not

indicate

that the government necessarily failed to

prove an

essential element

of its

case

beyond

reasonable

cannot

necessarily

doubt.

assume[]

. .
that

We
the

acquittal . . . was proper -- the one the

jury

really

possible

meant.

that

the

It

is

jury,

equally

convinced

of

guilt, properly reached its conclusion on

[one] offense, and
compromise,

or

inconsistent

lenity,

conclusion

offense.

As

appellate

courts

independent

then through mistake,

long

as

arrived
on

review

an

the [other]

the

are

at

trial

and

convinced

on

that

there

was

sufficient evidence to sustain a rational

verdict

of

doubt,

the

guilt

beyond

defendant

protected against

any risk

reasonable

is

properly

of injustice

resulting from jury irrationality.

Id. (citations
___

and internal

Calderon's conviction was

quotations

omitted).

supported by sufficient

Because

evidence,

the challenge based on alleged verdict inconsistency fails.

Affirmed.
_________

-1111