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United States of America v. Silvestre Rico Beltran

February 2, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
SILVESTRE RICO BELTRAN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of New York (Richard J. Sullivan, J.).

10-161-cr

United States v. Rico Beltran

SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUM M ARY ORDER"). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 2 nd day of February, two thousand eleven.

PRESENT: GUIDO CALABRESI, GERARD E. LYNCH, J. GARVAN MURTHA, District Judge.*fn1 Circuit Judges,

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Silvestre Rico Beltran appeals from his conviction in the Southern District of New York (Richard J. Sullivan, J.), after a one-week jury trial, of distributing and possessing with intent to distribute, and conspiring to distribute and possess with the intent to distribute, five kilograms and more of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Rico Beltran argues that the district court erred by: (1) denying his motion to suppress physical evidence seized from his apartment, and (2) declining to give a requested jury instruction stating that ownership and control of a vehicle, alone, does not establish constructive possession of drugs hidden in the vehicle. We assume the parties' familiarity with the relevant facts and procedural history of this case, and the issues presented on this appeal.

I. Suppression Motion

Before trial, Rico Beltran unsuccessfully moved to suppress evidence seized during a search of his residence. On appeal, he argues that the district court erred in finding that his co-defendant, Carlos Pena Ontiveros, voluntarily consented to the search.

Whether authorities obtained voluntary consent to conduct a search "is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). "We will not reverse a finding of voluntary consent except for clear error." United States v. Snype, 441 F.3d 119, 131 (2d Cir. 2006).

The court held an evidentiary hearing on the suppression motion, hearing testimony from the agents who conducted the search, and considering affidavits from Pe a Ontiveros and Rico Beltran. The court credited the agents' testimony as "wholly credible and consistent," and found that it established the following: Agents knocked on the front door, the back door and windows of the residence at approximately 3:00 a.m. for twenty minutes, until Pe a Ontiveros opened the front door. Special Agent Mildred Marin asked Pe a Ontiveros if he spoke English, and he said he did. Marin asked whether the agents could enter the residence, and he said "yes." The agents entered the residence and conducted a protective sweep. Marin then asked Pe a Ontiveros for consent to search the apartment, and Pe a Ontiveros said "yes, you can." The agents conducted the search at issue.One agent found approximately two kilograms of cocaine and $98,000 in cash behind a vent in a closet. Elsewhere in the apartment, agents found various items commonly used in connection with drug trafficking, including a heat-sealing machine, a digital scale, and a money-counting machine.

The district court rejected as incredible the defendants' version of events, which asserted that the defendants repeatedly denied the agents' requests to enter the residence as the agents brandished weapons, yelled, and threatened them. The defendants alleged that the agents eventually tricked them into letting the agents into the residence by asking to use the bathroom, a scenario that the district court stated "strains credulity." The court explicitly credited the agents' testimony over the defendants' conflicting assertions.

The court further found that Pe a Ontiveros was a middle-aged man who speaks English, who faced no questioning or physical punishment prior to giving consent, who was not in custody at the time of consent, and who remained calm during his interactions with the agents. On the totality of the circumstances, the ...


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