United States v. Pérez-Greaux

83 F.4th 1

UNITED STATES of America, Appellee, v. Luis O. PÉREZ-GREAUX, t/n Luis Orlando Pérez-Greax, Defendant, Appellant.

No. 21-1699

United States Court of Appeals, First Circuit

September 28, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge].

Kevin E. Lerman, Research & Writing Attorney, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, were on brief, for appellant.

David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

Before Gelpí, Thompson, and Montecalvo, Circuit Judges.

GELPÍ, Circuit Judge.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.¹

Defendant-Appellant Luis Orlando Pérez-Greaux ("Pérez-Greaux") was convicted of (1) possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) possession of a machinegun in furtherance of a drug trafficking crime, in violation of § 924(c)(1)(A) and § 924(c)(1)(B)(ii), which carries a mandatory minimum sentence of thirty years' imprisonment. At trial, the district court instructed the jury, over Pérez-Greaux's objection, that, to convict Pérez-Greaux of § 924(c)(1)(B)(ii), the government need not prove beyond a reasonable doubt that Pérez-Greaux knew that the firearm he possessed had the characteristics of a machinegun, rather the government only need prove that the firearm was in fact a machinegun.

Pérez-Greaux appeals his two firearm convictions, arguing that the district court improperly denied his Federal Rule of Criminal Procedure 29 ("Rule 29") motion for acquittal on each of these counts because there was (1) insufficient evidence at trial that the firearm he possessed was truly possessed "in furtherance of" his drug trafficking offense and (2) insufficient evidence that he knew the firearm he possessed was a machinegun. In the alternative, he requests a new trial on the basis that the district court (1) improperly instructed the jury that the government was not required to prove that Pérez-Greaux knew the firearm he possessed was a machinegun, (2) made a slew of alleged trial errors that he contends infected his right to a fair trial, and (3) erred by denying his request for a Franks hearing. While we rule against Pérez-Greaux's challenge to the sufficiency of the evidence and claims of alleged pretrial and trial error, we conclude, in a case of first impression, that the jury should have been instructed about Pérez-Greaux's knowledge of the firearm's characteristics. Thus, we vacate Pérez-Greaux's conviction for possession of a machinegun in furtherance of a drug trafficking crime and remand for a new trial as to that count.

I. Background

Because this case comes to us on a unique posture -- to review a Rule 29 motion for sufficiency of the evidence and a motion for a new trial based on claims of prejudicial error as a result of faulty jury instructions -- we recount the facts only as necessary to frame the issues on appeal.² Burgos-Montes, 786 F.3d at 99.

According to testimony at trial, on June 1, 2018, Puerto Rico Police Department ("PRPD") Agent Jose Rivera Vélez ("Agent Rivera") was surveilling Pérez-Greaux's residence, based on a tip that he had received from a confidential informant, who had previously supplied him information, when he observed Pérez-Greaux walk out of his home "carrying a black pistol around his waist." After consulting police records, Agent Rivera learned that Pérez-Greaux did not have a license to carry a pistol and requested a warrant to search his residence, which was issued.

On June 5, 2018, PRPD officers and Homeland Security Investigations ("HSI") agents executed the search warrant of Pérez-Greaux's residence in Arecibo, Puerto Rico, and, upon their arrival, found Pérez-Greaux outside. When PRPD Agent Carlos Pérez-Carrasco ("Agent Pérez-Carrasco") informed Pérez-Greaux that they had a search warrant, Pérez-Greaux responded that he did not want his family harmed and would hand over what was inside. Thereafter, Pérez-Greaux led officers to a locked safe in his bedroom, which contained three kilograms of cocaine, a digital scale, and other personal belongings, including firearm periodicals. He then led them to his children's bedroom in the adjoining room, which he said contained a firearm. Indeed, Agent Pérez-Carrasco, who stood at 5'6", had little difficulty reaching a plastic bag, on the top shelf of the closet, containing a .9mm Glock pistol (wrapped in a rag, inside paper bags), magazines, and separately packed bullets.

Pérez-Greaux was questioned by HSI Special Agent Juan Miranda ("Agent Miranda") at the Arecibo Drug Unit in the Municipality of Camuy for around two hours. According to Agent Miranda's trial testimony, Pérez-Greaux stated that he was storing the cocaine for a drug supplier, alias "Alex," who he knew from Rochester, New York. Pérez-Greaux also disclosed that he had been working as a drug trafficker since March or April 2018 whereby he would wrap cocaine with carbon paper, vacuum seal it, and box it, along with toys and other miscellaneous items, for shipping to the continental United States via the United States Postal Service ("USPS"). At trial, Agent Miranda recalled seeing a box in Pérez-Greaux's residence addressed to "Alex Ortiz" in Rochester, New York. As to the firearm, Pérez-Greaux gave Agent Miranda two versions of how he obtained it. First, he said that he had received the firearm and cocaine from Alex, several days before the search, at a beach club in Isla Verde, Puerto Rico. Alex had referred to the firearm as "a short one with a couple of beans," and told him to "[j]ust hold on to that while I come back." Later on, in the same interview, Pérez-Greaux relayed a different version about the firearm, telling Agent Miranda that he had received the firearm from an "extremely dangerous person" that he had known for eight years named Marcos, or Marquito Santiago, and that he had no idea that the firearm operated as a fully automatic handgun.

An operative superseding indictment charged Pérez-Greaux with five counts: (1) possession of a firearm in furtherance of a drug trafficking crime; (2) possession of a machinegun in furtherance of a drug trafficking crime; (3) illegal possession of a machinegun; (4) possession with the intent to distribute controlled substances; and (5) possession of a firearm by a convicted felon. Prior to trial, the government requested the dismissal of Counts Three and Five.

A. The Trial

On October 15, 2019, Pérez-Greaux's four-day jury trial commenced on the three remaining counts.

Trial testimony revealed that, during the search of Pérez-Greaux's residence, law enforcement also recovered a gun holster, postage-stamped boxes from the children's bedroom closet, $600, and five cell-phones from Pérez-Greaux's side table. Over Pérez-Greaux's objections, the district court allowed the government to introduce photographs and screenshots extracted from the five cellphones in the days before trial, using state-of-the-art technology. The extraction revealed images, pre-dating June 5, 2018, of shipment receipts, toys in plastic bags, and vacuum sealed bricks (of what appeared to be controlled substances) and screenshots of package tracking information, money transfers, and text messages discussing pricing. Matthew Johnson, the computer forensic agent who performed the extraction, testified that he could not determine who had accessed the cellphones, captured the images, or deleted them.

At trial, Jeffrey T. Browder, a firearms expert, testified that the recovered Glock pistol had been altered to include an external, automatic sear that caused it to function as a machinegun. He noted that he was able to identify the machinegun alteration because of his training and expertise but confirmed it by test firing the weapon.

At the conclusion of the government's case-in-chief, Pérez-Greaux moved for judgment of acquittal pursuant to Rule 29³ on the grounds that the government had failed to put forth sufficient evidence of possession with intent to distribute a controlled substance, failed to prove the "in furtherance of" element of the firearm offenses, and failed to offer sufficient evidence that he knew that the weapon in his home was a machinegun. The district court denied the motion.

As previewed and will soon be discussed in greater detail, the district court also denied Pérez-Greaux's request that the jury be instructed that, to convict him of possession of a machinegun in furtherance of a drug trafficking crime, the government had to prove he "had knowledge of the characteristics that made the weapon a machinegun." The district court concluded, as a matter of law, that § 924(c)(1)(B)(ii) does not include "an implicit subjective mens rea requirement."

Ultimately, the jury convicted Pérez-Greaux on all three counts tried.

B. Renewed Rule 29 Motion

Following the verdict, Pérez-Greaux renewed his Rule 29 motion, which the district court again denied, finding that the evidence presented at trial sufficiently supported the convictions. In its written decision, the district court first held that, with respect to possession with intent to distribute cocaine, a reasonable juror could infer that Pérez-Greaux knowingly possessed a controlled substance after he led Agent Pérez-Carrasco to the safe in his bedroom and identified the substance in it as cocaine and that he had...