926 F.

2d 22

UNITED STATES, Appellee,

v.
Robert J. WILKINSON, Defendant, Appellant.
No. 90-1376.

United States Court of Appeals,

First Circuit.
Heard Nov. 8, 1990.
Decided Feb. 11, 1991.

John H. LaChance, Framingham, for defendant, appellant.

A. Clayton Spencer, Asst. U.S. Atty., with whom Wayne A. Budd, U.S.
Atty., Boston, Mass., was on brief, for appellee.
Before BREYER, Chief Judge, SELYA, Circuit Judge, and PETTINE,*
Senior District Judge.
BREYER, Chief Judge.

The convictions before us arise out of three events:

1) In May 1988, state police found cocaine and guns in Robert Wilkinson's
house.

2) In October 1988, Wilkinson jumped bail.

3) In September 1989, federal agents found Wilkinson at the home of friends;

they also found cocaine and guns in Wilkinson's duffel bag.

Subsequently, a federal jury convicted Wilkinson of:

1) simple possession of cocaine (in 1988), 21 U.S.C. Sec. 844(a);

2) jumping bail, 18 U.S.C. Sec. 3146(a)(1);

2) jumping bail, 18 U.S.C. Sec. 3146(a)(1);

3) possessing cocaine with intent to distribute it (in 1989), 21 U.S.C. Sec.

841(a)(1);

4) carrying or using a gun in connection with a drug offense (in 1989), 18

U.S.C. Sec. 924(c); and

10

5) as a previously convicted felon, unlawfully possessing a gun (in 1988 and

1989), 18 U.S.C. Sec. 922(g)(1).

11

Wilkinson appeals these convictions. After reading his lengthy brief and the
record with care, we find his arguments unpersuasive, and we affirm the
convictions. We shall explain why.

* The 1989 Search

12
13

On September 24, 1989, law enforcement officers found Wilkinson (who had
jumped bail) at the home of his friends, Mr. and Mrs. Wilkes. They searched
Wilkinson's duffel bag and found drugs and guns. Wilkinson says that, because
the officers had no search warrant but only an arrest warrant, the Constitution
forbids their search of his duffel bag, and, the court should have suppressed the
drugs and guns as evidence. See Maryland v. Buie, 494 U.S. 325, 110 S.Ct.
1093, 1098, 108 L.Ed.2d 276 (1990); Chimel v. California, 395 U.S. 752, 768,
89 S.Ct. 2034, 2042, 23 L.Ed.2d 685 (1969). The Government replies that the
search was constitutional because Wilkinson gave his consent. The issue before
us is whether the district court could lawfully find that Wilkinson's consent was
voluntary, not "coerced." See Schneckloth v. Bustamonte, 412 U.S. 218, 225,
93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973) (defendant's consent does not
validate search if his "will has been overborne").

14

We review the district court's fact finding only for "clear error." United States
v. Twomey, 884 F.2d 46, 51-52 (1st Cir.1989), cert. denied, --- U.S. ----, 110
S.Ct. 2592, 110 L.Ed.2d 273 (1990). The record reveals that four law
enforcement officers entered the Wilkes' home. Wilkinson appeared at the top
of a flight of stairs, hands on his head, telling the officers to leave Mrs. Wilkes
alone, adding that "everything was his." Mrs. Wilkes gave the officers
permission to search the house. Wilkinson's duffel bag was in the basement.
Wilkinson then specifically told the officers they could search his duffel bag.

15

The record also shows that the officers had entered the house with guns drawn,
there was considerable commotion, they had handcuffed and frisked Wilkinson,

he repeatedly asked them to leave Mrs. Wilkes alone, he initially denied having
any guns or drugs in the house, one of the officers then threatened they would
"tear the place apart" unless he told them more, and he had taken drugs earlier
in the evening.
16

On the other hand, the record supports the district court's findings that
Wilkinson's "cognitive abilities were not compromised" by his earlier use of
drugs, that the officers "lowered their weapons" once Wilkinson "was secured,"
that he "acted in a calm, professional manner and appeared to understand his
options clearly," that he was "embarrassed" that the officers had found him in
the home of his "good friends" whom he wished "to save ... from further
involvement," and that he explicitly said the officers could search his bag, he
told the officers where his bag could be found, and he pointed out the location
of the guns in the bag.

17

Given these findings of fact, we cannot say, as a matter of law, that Wilkinson's
consent was coerced. His will was not "overborne," in the sense of his having
suffered a "critically impaired ... capacity for self-determination." Schneckloth,
412 U.S. at 225, 93 S.Ct. at 2047. That is to say, Wilkinson consented
"voluntarily," in the sense that neither drugs nor any other circumstance made
him unaware of, or mistaken about, any key fact, or unable physically to decide
or to choose whether or not to agree to the search. See id. at 226, 93 S.Ct. at
2047. Moreover, the agents did not coerce his voluntary decision by improperly
placing before him an impermissible choice; they did not, for example, threaten
him with a gun in order to elicit an otherwise "voluntary" consent. See id. at
224 & n. 7, 93 S.Ct. at 2046 & n. 7. One of the officers did "threaten to tear the
place apart," but the district court could reasonably find that this statement, in
light of Mrs. Wilkes' consent to a search of the house, amounted (in rather
strong terms) to no more than a permissible promise to search the house
thoroughly and (likely) find the guns eventually anyway. Consequently, we
cannot say that the search violated the federal Constitution; and admission of
the evidence was lawful.

II
The 1989 Drug/Firearm Offense
18

The jury convicted Wilkinson of violating 18 U.S.C. Sec. 924(c)(1), which

provides criminal punishment for any person who

during and in relation to any ... drug trafficking crime ... uses or carries a firearm....
19

20

Wilkinson concedes, for the sake of argument, that the law enforcement
officers found two guns and four ounces of cocaine in his bag and that the jury
might have convicted him of a relevant "drug trafficking crime." He argues,
however, that it could not lawfully convict him of the firearm crime for three
reasons.

21

First, he says that the evidence was not sufficient to convict. He says that the
guns were buried in the duffel bag, one wrapped in a towel, the other zipped up
in a small leather bag. Hence, they were not readily available for use during,
and therefore were not "use[d]" in "relation to," the drug crime.

22

The legal question is simply whether a reasonable juror could conclude that
Wilkinson had control over a gun and that it facilitated the commission of his
drug crime, namely distributing cocaine to others from the duffel bag. See
United States v. Meggett, 875 F.2d 24, 29 (2d Cir.), cert. denied, --- U.S. ----,
110 S.Ct. 166, 107 L.Ed.2d 123 (1989) ("it was sufficient to show that the
firearm furthered the commission of the drug trafficking crime"); United States
v. LaGuardia, 774 F.2d 317, 321 (8th Cir.1985) ("Section 924(c)(1) reaches the
possession of a firearm which in any manner facilitates the execution of a
felony."); United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985) (Kennedy,
J.) ("If the firearm is within the possession or control of a person who commits
an underlying crime as defined by the statute, and the circumstances of the case
show that the firearm facilitated or had a role in the crime, such as emboldening
an actor who had the opportunity or ability to display or discharge the weapon
or intimidate others, whether or not such display or discharge in fact occurred,
then there is a violation of the statute."). The fact that the guns were in the
same duffel bag as the drugs helps to support such a conclusion. See United
States v. Young-Bey, 893 F.2d 178, 181 (8th Cir.1990) ("It is permissible for
juries to infer that firearms found among a drug trafficker's paraphernalia are
used to further the drug venture and are thus used in relation to drug trafficking
within the meaning of section 924(c)(1)."); United States v. Lyman, 892 F.2d
751, 752-54 (8th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 45, 112 L.Ed.2d
21 (1990); United States v. Boyd, 885 F.2d 246, 250 (5th Cir.1989);
LaGuardia, 774 F.2d at 321.

23

Of course, other facts about the location of the drugs, namely the facts that the
guns were somewhat removed from the drugs within the bag and were hard to
unpack, support appellant's claim that the guns did not facilitate the crime. But,
ultimately, whether or not the guns helped appellant commit the drug crime is a
matter for a jury, applying common-sense theories of human nature and
causation. A juror might think it clear beyond a reasonable doubt that a person

who carried guns so near four ounces of drugs intended the guns for protection
when carrying or distributing the drugs. We cannot say that such a juror would
be an unreasonable human being. And, consequently, we must find the
evidence sufficient to support conviction. See United States v. GuerreroGuerrero, 776 F.2d 1071, 1075 (1st Cir.1985), cert. denied, 475 U.S. 1029, 106
S.Ct. 1233, 89 L.Ed.2d 342 (1986); see also Young-Bey, 893 F.2d at 181;
Lyman, 892 F.2d at 752-54; Boyd, 885 F.2d at 250; LaGuardia, 774 F.2d at
321. But see United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988)
(distinguished in United States v. Hadfield, 918 F.2d 987, 997 (1st Cir.1990)).
24

Second, Wilkinson says that the trial court should have instructed the jury that,
to convict, it must find

25 the defendant ... had a specific intent to use or have the firearms available for
that
use, if needed, in the drug trafficking crime he was accused of committing.
26

The court, however, did give an instruction that embodied the essence of
Wilkinson's request. The court told the jury

27is not enough to show that he possessed the guns, just possessed them; rather, the
It
Government has to prove that the guns in some way facilitated the drug crime. If you
find that the defendant carried guns on one or both dates, the question is for what
purpose did he do so? Was it to protect the drugs or himself in connection with the
drug transaction, or was it to protect jewelry, or because he had a general fear of
robbers?
28

(emphasis added). We do not see how the court's description of the defendant's
"purpose" differs in any significant way from Wilkinson's desire that the jury
understand it must find a "specific intent."

29

Third, Wilkinson points out that the Government supported its claim that he
intended to distribute the four ounces of cocaine found in his duffel bag (rather
than simply using it himself) in part by showing that, earlier in the evening, he
had shared with Mrs. Wilkes cocaine from a different stash (a half ounce or so
that he kept in his trousers pocket). He seems to argue that the judge should
have instructed the jury that, insofar as it inferred an intent to distribute the
duffel-bag-four-ounces from the sharing of the trousers-pocket-half-ounce, it
had to believe the guns in the duffel bag were meant to protect the sharing of
the trousers-pocket-half-ounce.

30

We are not certain whether we understand the argument correctly. If we do, we

do not understand why he would have been entitled to the instruction. But, in

any event, we must reject the argument because we cannot find a proper
objection in the record. As we have repeatedly held, Fed.R.Crim.P. 30 means
what it says. A party may not claim error in the judge's charge to the jury
unless that party "objects" after the judge gives the charge but before the "jury
retires," and, when objecting the party must "stat[e] ... distinctly the matter to
which that party objects and the grounds of that objection." Fed.R.Crim.P. 30;
see, e.g., United States v. Sturm, 870 F.2d 769, 775-76 (1st Cir.1989). The only
language that we find that arguably makes such an objection on the record page
to which counsel refers us says: "I would incorporate arguments that I made
earlier on the record before." In context, this statement does not "distinctly"
point to any specific prior objection, let alone explain the "grounds" of that
objection. Nor did counsel's prior (precharge) discussion of the subject explain
clearly the "grounds" for the objection. Under these circumstances, we cannot
consider the point.
III
The 1988 Search
31

Wilkinson claims that his conviction for possessing drugs in 1988 rested upon
unlawfully seized evidence, namely seven ounces of cocaine, drug
paraphernalia, and money that police seized at his home on May 25, 1988.
Wilkinson concedes that the police had a search warrant, but he says that the
warrant, constitutionally speaking, was invalid for two reasons.

32

First, Wilkinson points out that the magistrate who issued the warrant, in
finding probable cause for the search, relied in part upon the police having
found bags with cocaine residue and round perforated pieces of aluminum foil
(of a kind often used for "freebasing" cocaine) in Wilkinson's trash. Wilkinson
argues that the warrantless police searches of his trash containers--three times
in 1986 and three times in 1988--violated the Fourth Amendment's prohibition
of unreasonable searches.

33

The short conclusive answer to this claim is that the Supreme Court has
specifically held that the Fourth Amendment does not forbid a warrantless
search of trash left out for collection. See California v. Greenwood, 486 U.S.
35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Wilkinson says that, compared
with the defendant in Greenwood, he had an elevated "expectation of privacy"
in respect to his trash, because 1) he had left it for collection on his own lawn
next to the curb, while the Greenwood defendant apparently left the trash on
the curb itself, and 2) he had placed his trash in bags within barrels, while the
Greenwood defendant apparently did not do so.

34

But, these are distinctions without a difference. The Greenwood Court, in

finding that the defendant lacked any significant "expectation of privacy,"
wrote:

35is common knowledge that plastic garbage bags left on or at the side of a public
It
street are readily accessible to animals, children, scavengers, snoops, and other
members of the public. Moreover, respondents placed their refuse at the curb for the
express purpose of conveying it to a third party, the trash collector, who might
himself have sorted through respondents' trash or permitted others, such as police, to
do so.
36

486 U.S. at 40, 108 S.Ct. at 1629. This language applies equally well to the
present case. See United States v. Trice, 864 F.2d 1421, 1423-24 (8th
Cir.1988), cert. dismissed, 491 U.S. 914, 109 S.Ct. 3206, 105 L.Ed.2d 714
(1989); but see United States v. Certain Real Property Located at 987 Fisher
Road, 719 F.Supp. 1396, 1404 (E.D.Mich.1989) (defendant had reasonable
expectation of privacy in trash left for pick-up by back door).

37

Second, Wilkinson argues that the affidavit presented to the magistrate failed to
show probable cause for the search. The affidavit, however, described six
separate occasions upon which law enforcement officers found cocaine residue
in trash outside Wilkinson's house, the last occasion being the very day on
which the affidavit was written. The magistrate could thereby infer a reasonable
probability that searching officers would find cocaine inside the house itself.

IV
Sentence Enhancement Under the Armed Career Criminal Act (ACCA)
38
39

If a felon convicted of unlawfully possessing a firearm (such as Wilkinson) has

"three prior convictions for a violent felony," the court must sentence him to a
prison term of at least 15 years. See 18 U.S.C. Sec. 924(e)(1). At Wilkinson's
sentencing hearing, the Government introduced certified copies of four such
prior convictions: 1) a September 1955 armed robbery conviction, 2) an
October 1955 breaking and entering conviction, 3) a 1960 breaking and
entering conviction, and 4) a 1968 armed robbery conviction. Wilkinson says
(and the Government concedes) that these convictions fall within the statutory
phrase "three prior convictions" only if they are constitutionally valid
convictions. See United States v. Tucker, 404 U.S. 443, 447-49, 92 S.Ct. 589,
591-93, 30 L.Ed.2d 592 (1972) (sentencing judge may not consider
constitutionally infirm prior conviction); Burgett v. Texas, 389 U.S. 109, 115,
88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967) (same) (dictum). And, Wilkinson

argues that the Government has not proved they are constitutionally valid
because it has not shown he was represented by counsel during the 1955
"breaking and entering" proceedings or during the 1968 armed robbery
proceedings.
40

The parties argue at length about who has the burden of proving the
constitutional validity or invalidity (for sentencing purposes) of a prior,
predicate conviction. The Government points out that, theoretically speaking,
any given conviction might suffer any of a myriad of constitutional defects.
Practically speaking, it is the defendant, not the probation officer or the
Government, who will know any particular defect-related details about any
particular prior conviction. For such reasons, the Sentencing Commission (and
courts) in related sentencing areas have said that, once the Government
establishes the existence of a prior conviction, the burden shifts to the offender
to show that the conviction violated the Federal Constitution. See Sentencing
Guidelines Sec. 4A1.2 Application Note 6 ("Convictions which the defendant
shows to have been constitutionally invalid may not be counted in the criminal
history score.") (emphasis added); United States v. Unger, 915 F.2d 759, 764
(1st Cir.1990); United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989).
These practical reasons, and the need for uniformity in sentencing procedure,
would counsel a similar result here. And, Wilkinson could not meet such a test,
for he did not provide the sentencing court, nor has he provided us, with any
good reason to believe that he did not have a lawyer in either 1955 or 1968. He
has nowhere said, for example, that he did not have a lawyer; he simply says
the Government did not prove that he did.

41

We need not decide the "burden of proof" question definitively, however, for
there is a simpler reason why Wilkinson's argument fails. To enhance
Wilkinson's sentence, the Government must show in post-trial sentencing
proceedings that he had three prior "violent felony" convictions. See 18 U.S.C.
Sec. 924(e)(1). Ordinarily, the Government must prove facts used for
sentencing by "a preponderance of the evidence." See, e.g., United States v.
Wright, 873 F.2d 437, 441 (1st Cir.1989). The "evidence" that it may use to
make this showing must be "reliable," but it need not meet "hearsay," or other
formal evidentiary requirements. See United States v. Moccia, 681 F.2d 61, 65
(1st Cir.1982); United States v. Fatico, 579 F.2d 707, 713 (2d Cir.1978). We
know of no reason why this would be different in the ACCA context. The
Government showed that Wilkinson had three prior "violent felony"
convictions by introducing certified copies of four convictions, along with
various other procedural papers from the prior proceedings. With one
exception, not a word in the record suggests that Wilkinson was not represented
by counsel during these prior proceedings. Since the number of felony cases

where a defendant lacks counsel must be small (particularly after Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)), a sentencing
court may permissibly infer from the record of the conviction that the
conviction was not obtained unconstitutionally provided the record contains no
reason to believe the contrary.
42

As we noted above, the record contains almost no reason to believe the

contrary. But there is one exception. The document used to prove the 1968
conviction for armed robbery has a space for the name of defense counsel, and
that space is blank. The record, however, also contains the presentence report,
which specifically says that Wilkinson was represented by counsel in 1968--a
conclusion that the presentence report says it reached on the basis of a different
presentence report relevant to a 1977 federal prosecution, which, in turn, says it
obtained that information from "court records." In sentencing matters,
presentence reports are normally considered reliable sources of information,
upon which sentencing courts may rely, as are court records. That is to say,
courts can, and do, commonly take as true facts stated in presentence reports
when they are not challenged. See, e.g., United States v. McVicar, 907 F.2d 1,
2 (1st Cir.1990); United States v. McDowell, 888 F.2d 285, 290 n. 1 (3d
Cir.1989). As we have said, Wilkinson nowhere has denied that he had counsel
in 1968. He claims only that the Government did not prove that he did.
Wilkinson does not claim that he did not see the presentence report before
sentencing. Nor does he claim he was not given an opportunity to challenge the
statement. See Fed.R.Crim.P. 32(c)(3)(A). In our view, under these
circumstances, the certified convictions, the record references we have just
mentioned, the fact that an uncounseled felony proceeding would be most
unusual, and the absence of any other indication that Wilkinson lacked counsel,
are more than enough to permit a court to conclude that his prior record
satisfied the statute's terms, irrespective of how we might eventually decide to
allocate the burden of proving (under the ACCA) that an otherwise apparently
valid predicate conviction was unconstitutional.

43

Wilkinson's final argument is that one of the predicate convictions--the 1960

conviction--is not a "violent felony" for purposes of the sentencing statute. That
statute defines "violent felony" as "any crime ... that ... is burglary ... or
otherwise involves conduct that presents a serious potential risk of physical
injury to another." 18 U.S.C. Sec. 924(e)(2)(B). Wilkinson's 1960 conviction
was for breaking and entering a building in the nighttime with the intent to
commit a felony, in violation of Mass.Gen.L. ch. 266, Sec. 16. We have held
that this crime falls within the statute because it "involves conduct that presents
a serious potential risk of physical injury to another." See United States v.
Patterson, 882 F.2d 595, 604 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct.

737, 107 L.Ed.2d 755 (1990). The Supreme Court more recently held that
"burglary" includes "an unlawful ... entry into ... a building ... with intent to
commit a crime." Taylor v. United States, --- U.S. ----, 110 S.Ct. 2143, 2158,
109 L.Ed.2d 607 (1990). Hence, one way or the other or both, the predicate
offense falls within the statute.
The judgment of the district court is
44

Affirmed.

Of the District Court of Rhode Island, sitting by designation