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United States v. Rodriguez

United States Court of Appeals, First Circuit

March 26, 2019

CARLOS RODRIGUEZ, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND Hon. William E. Smith, U.S. District Judge Hon. Lincoln D. Almond, U.S. Magistrate Judge

          William T. Murphy on brief for appellant.

          Stephen G. Dambruch, United States Attorney, and Donald C. Lockhart, Assistant United States Attorney, on brief for appellee.

          Before Barron, Circuit Judge, Souter, [*] Associate Justice, and Selya, Circuit Judge.


         Defendant-appellant Carlos Rodriguez claims that the district court committed reversible error when it relied on previously excluded evidence to find that he violated a condition of his supervised release. He also claims that the district court had insufficient evidence to find a second violation. Concluding, as we do, that any error was harmless and that the evidence was sufficient to sustain both findings, we affirm.

         We briefly rehearse the relevant facts and travel of the case. On February 10, 2011, the defendant entered a guilty plea to one count of distribution of cocaine base (crack cocaine), in violation of 21 U.S.C. § 841(a)(1). The district court imposed an 84-month incarcerative term, to be followed by a three-year supervised release term. The defendant completed his prison sentence and began his supervised release.

         On May 16, 2017 (roughly nine months into his supervised release term), the defendant submitted a urine sample to his probation officer. The sample tested positive for amphetamines. Even though the defendant denied using amphetamines, a follow-up test confirmed their presence.

         On August 22, 2017, two detectives employed by the Providence, Rhode Island police department were in an unmarked car, looking for street-level narcotics activity. They observed what appeared to be an ongoing drug deal. When the participants drove away, both of their vehicles were followed by police officers. The detectives stopped one car and asked the driver, later identified as Jessica Thibault, to exit her vehicle. Thibault immediately volunteered, "it's in my bra" and proceeded to retrieve six bags of heroin from her bra. Other officers stopped the second car and arrested the defendant (who was driving). They seized a set of keys and $100 in cash from his person.

         Relying in part on information supplied by Thibault, police officers located what they believed to be the defendant's residence: an apartment on Covell Street. Their suspicions were bolstered when they saw the defendant's name on the mailbox assigned to the third-floor flat. Using a key found on the defendant's person, the officers entered the apartment and conducted a protective sweep. They saw various items of drug paraphernalia in plain view.

         The detectives then sought and obtained a warrant to search the apartment. The search revealed a potpourri of drugs (including cocaine, heroin, marijuana, and alprazolam), together with additional drug paraphernalia. The search also revealed several items linking the defendant to the apartment, such as a utility bill in the defendant's name and photographs of the defendant with two children.

         A federal probation officer was monitoring the defendant's supervised release, and the police told her what had happened. In short order, the probation officer sought and received a federal warrant for the defendant's arrest. The associated complaint charged the defendant with two separate violations of supervised release conditions: possession of narcotics with intent to distribute (count 1) and unlawful use of amphetamines (count 2). It is undisputed that these acts, if proved, would violate conditions of the defendant's supervised release.

         On November 2, 2017, the defendant appeared before a magistrate judge for a supervised release revocation hearing. See Fed. R. Crim. P. 59. The government offered testimony from one of the Providence police detectives who had witnessed the drug deal and from the probation officer. The detective testified as to what he had seen during the August 22 incident and described this observed behavior as consistent with street-level narcotics activity. He also described the search of the apartment and what it had revealed. The magistrate judge also allowed the detective to testify, over objection, about out-of-court statements made by Thibault immediately after the incident, reserving an ultimate decision as to admissibility.

         The probation officer's testimony was directed mainly to count 2. She testified that the defendant had provided a urine sample that tested positive for amphetamines. Some of her testimony, though, related to count 1: she confirmed that she had made home visits at the defendant's residence on Covell Street, where ...

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