United States v. Hector Becerra Oscar Fabio Moreno, Olga Moreno, 97 F.3d 669 (2d Cir. 1996). · Go Syfert
United States v. Hector Becerra Oscar Fabio Moreno, Olga Moreno, 97 F.3d 669 (2d Cir. 1996). Cases Citing This Book View Copy Cite
“the warrant remains contingent until delivery because some uncertainty exists as to whether the suspect will give further credence to that relationship by accepting the package.”
38 citation events (31 in the last 25 years) across 11 distinct courts.
Strongest positive: United States v. Bryant Iwai (ca9, 2019-07-23)
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Bryant Iwai
9th Cir. · 2019 · quote attribution · 1 verbatim quote · confidence high
the warrant remains contingent until delivery because some uncertainty exists as to whether the suspect will give further credence to that relationship by accepting the package.
discussed Cited as authority (rule) United States v. Midyett
E.D.N.Y · 2009 · confidence medium
Reply at pp. 21-22; Indictment, Count 1.) The Second Circuit has “repeatedly approved the admission of firearms as evidence of narcotics conspiracies, because drug dealers commonly keep firearms on their premises as tools of the trade.” United States v. Vegas, 27 F.3d 773, 778 (2d Cir.1994) (quotations omitted); United States v. Becerra, 97 F.3d 669, 671 (2d Cir.1996); United States v. Gadsden, 300 Fed.Appx. 108, 110 (2d Cir.2008) (“testimony about ... firearm possession during or around the time of a narcotics conspiracy appropriately established [defendant’s] conduct during the charg…
examined Cited as authority (rule) United States v. Vasconcellos (3×) also: Cited "see"
N.D.N.Y. · 2007 · confidence medium
Also, the Circuit “has long recognized the connection between drug trafficking and firearms, repeatedly permitting firearms into evidence as proof of narcotics conspiracies ‘because drug dealers commonly keep firearms on their premises as tools of the trade.’ ” U.S. v. Mitchell, 328 F.3d 77, 83 (2d Cir.2003) (quoting U.S. v. Becerra, 97 F.3d 669, 671-72 (2d Cir.1996)).
examined Cited as authority (rule) United States v. Fred Snow, Marcus Snow, Rahad Ross (6×) also: Cited "see", Cited "see, e.g."
2d Cir. · 2006 · confidence medium
INSUFFICIENT EVIDENCE: MAINTAINING DRUG PREMISES Lastly, Ross challenges his conviction for opening and maintaining the premises at 183 Sixth Street for the purpose of distributing and using cocaine base between September 1, 2001 and January 1, 2002 in violation of 21 U.S.C. § 856 (a)(1) and 18 U.S.C. § 2 . 14 To convict, “the gov ernment was required to establish beyond a reasonable doubt that the defendant (1) opened or maintained a place; (2) for the purpose of distributing or packaging controlled substances; and (3) did so knowingly.” United States v. Becerra, 97 F.3d 669, 672 (2d Ci…
discussed Cited as authority (rule) United States v. Boone
2d Cir. · 2005 · confidence medium
See, e.g., Griffin v. United States, 502 U.S. 46, 60 , 112 S.Ct. 466 , 116 L.Ed.2d 371 (1991); United States v. Becerra, 97 F.3d 669, 672 (2d Cir.1996) (finding “conviction as an aider and abettor was not erroneous since the jury had ample evidence on which to convict [the defendant] as a principal”); United States v. Knoll, 16 F.3d 1313, 1323 (2d Cir.1994) (“an indictment charging aiding and abetting may be proven by demonstrating that the aider and abettor was in fact a principal”) (internal citation omitted); United States v. Peterson, 768 F.2d 64, 67 (2d Cir.1985) (stating that con…
discussed Cited as authority (rule) United States v. Maddox
10th Cir. · 2004 · confidence medium
"Indeed, our notion of what is reasonable police conduct has long reflected the heightened danger and risk of violence posed by cocaine trafficking.” Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1330 (D.C.Cir.2000); see also Shareef, 100 F.3d at 1506 ; United States v. Becerra, 97 F.3d 669, 671-72 (2d Cir.1996) (reasonable to suspect that "drug dealers commonly keep firearms on their premises as tools of the trade”) (citations and internal quotations omitted); United States v. White, 648 F.2d 29 , 36 n. 29 (D.C.Cir.1981) (study of drugs and violence justifies police drawing weapons beca…
discussed Cited as authority (rule) United States v. Marvin T. Mitchell
2d Cir. · 2003 · confidence medium
Moreover, our circuit has long recognized the connection between drug trafficking and firearms, repeatedly permitting firearms into evidence as proof of narcotics conspiracies “because drug dealers commonly keep firearms on their premises as tools of the trade.” United States v. Becerra, 97 F.3d 669, 671-72 (2d Cir.1996) (internal quotation marks and citation omitted).
discussed Cited as authority (rule) United States v. Garcia
2d Cir. · 2003 · confidence medium
Moreover, precisely because guns are tools of the narcotics trade, see United States v. Becerra, 97 F.3d 669, 671 (2d Cir.1996); United States v. Vegas, 27 F.3d 773, 778 (2d Cir.1994) (and cases cited therein), it was hardly “clearly improbable” that Garcia’s possession of a firearm was unrelated to his extensive drug trafficking activities.
discussed Cited as authority (rule) United States v. Thristino
2d Cir. · 2002 · confidence medium
The evidence of drug-dealing in Thristino’s apartment was also relevant to show his motive for possessing ammunition as a “tool” of the drug trade, cf. United States v. Becerra, 97 F.3d 669, 671 (2d Cir.1996) (noting that this Court has repeatedly approved the admission of firearms and ammunition as evidence of drug-activity because drug dealers commonly keep firearms on their premises as tools of the trade), and to provide the jury with information needed to complete the narrative of the events and circumstances, Gonzalez, 110 F.3d at 941-42 .
discussed Cited as authority (rule) United States v. Julio Gori, Sorin Pichardo and Victor Rosario (2×)
2d Cir. · 2000 · confidence medium
And when the door was opened, and the occupants and the police could see each other, it was reasonable for the police to ask the occupants of a known narcotics stash house to step outside for the purposes of a limited investigation: otherwise, the officers would have been exposed to danger. 7 See id. at 24 , 88 S.Ct. 1868 (in the course of investigatory detention “it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to ... neutralize the threat of physical harm”); United States v. Becerra, 97 F.3d 669, 671-72 (2d Cir.1996) (reasonable to suspe…
discussed Cited as authority (rule) State v. Womack
Utah Ct. App. · 1998 · confidence medium
May 6, 1993); State v. Mier, 147 N.J.Super. 17 , 370 A.2d 515, 516 (N.J.Super.Ct.App.Div.1977); McNeill v. Commonwealth, 10 Va.App. 674 , 395 S.E.2d 460, 461 (Va.Ct.App.1990), or that police verified who lived at the address in question, see, e.g., United States v. Becerra, 97 F.3d 669, 670 (2d Cir.1996); United States v. Outland, 476 F.2d 581 , 582 n. 1 (6th Cir.1973); United States ex rel.
discussed Cited as authority (rule) State v. Goble
Wash. Ct. App. · 1997 · confidence medium
LaFave, Search and Seizure § 3.7(d), at 372 (3d ed. 1996). 19 The first question is not in issue because it is undisputed that the package intercepted at the airport, and later delivered to the Morton Post Office, contained contraband. 20 United States v. Hugoboom, 112 F.3d 1081 (10th Cir. 1997); United States v. Becerra, 97 F.3d 669, 671 (2d Cir. 1996), cert. denied sub nom.
discussed Cited "see" United States v. Fitzgerald
2d Cir. · 2013 · signal: see · confidence high
See United States v. Becerra, 97 F.3d 669, 672 (2d Cir.1996) (holding that a “conviction as an aider and abettor was not erroneous since the jury had ample evidence on which to convict [the defendant] as a principal”).
discussed Cited "see" United States v. Taylor
2d Cir. · 2013 · signal: see · confidence high
See United States v. Becerra, 97 F.3d 669, 672 (2d Cir. 1996) (holding that 15 a “conviction as an aider and abettor was not erroneous since the jury had ample evidence 16 on which to convict [the defendant] as a principal”).
cited Cited "see" United States v. Jarvis
2d Cir. · 2007 · signal: see · confidence high
See United States v. Becerra, 97 F.3d 669, 671-72 (2d Cir.1996) (stating that firearms are common tools of the drug dealing trade); 18 U.S.C. § 922 (g).
cited Cited "see" United States v. Perez
2d Cir. · 2005 · signal: see · confidence high
See United States v. Becerra, 97 F.3d 669, 671 (2d Cir.1996).
cited Cited "see" United States v. Willie J. Gamble
2d Cir. · 2004 · signal: see · confidence high
See United States v. Becerra, 97 F.3d 669, 671-72 (2d Cir.1996); United States v. Vegas, 27 F.3d 773, 778 (2d Cir.1994); United States v. Cooper, 19 F.3d 1154, 1163 (7th Cir.1994).
discussed Cited "see" State v. Baldwin
N.C. Ct. App. · 2003 · signal: see · confidence high
App. at 571 , 478 S.E.2d at 241 ; see U.S. v. Becerra, 97 F.3d 669 (2nd Cir. 1996) (holding an anticipatory search warrant, whose triggering event is the delivery of a package, is not invalidated because the package is taken off the premises).
cited Cited "see" United States v. Olga Moreno, Hector Becerra, Oscar Fabio Moreno, Hernan Moreno
2d Cir. · 1999 · signal: see · confidence high
See United States v. Becerra, 97 F.3d 669 (2d Cir.1996), cert. denied sub nom.
cited Cited "see" United States v. George Dean Martin
2d Cir. · 1998 · signal: see · confidence high
See United States v. Becerra, 97 F.3d 669, 671 (2d Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1006 , 136 L.Ed.2d 886 (1997); United States v. Moetamedi, 46 F.3d 225, 228 (2d Cir.1995).
discussed Cited "see, e.g." United States v. Pettway (2×)
2d Cir. · 2021 · signal: see also · confidence medium
A district court abuses its discretion “when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision— 2 Pettway does not contest the sufficiency of the evidence showing intent to distribute. 3 The District Court properly rejected Pettway’s argument that the evidence was insufficient to support his convictions for “aiding and abetting” Michael Pettway in Counts Seven, Eight, and Nine on the ground that “there was sufficient evidence to permit the jury to find that Collins Pettway was cri…
discussed Cited "see, e.g." United States v. Banks
N.D. Ill. · 2009 · signal: see, e.g. · confidence medium
See, e.g., United States v. Becerra, 97 F.3d 669, 671-72 (2d Cir.1996) (noting that it is reasonable to suspect that “drug dealers commonly keep firearms on their premises as tools of the trade”); United States v. White, 648 F.2d 29 , 36 n. 29 (D.C.Cir.1981) (observing that a study of drugs and violence justifies police drawing weapons because “odds [are] too high to require policemen to play ‘russian roulette’ each time they effect a drug arrest”). 2.
cited Cited "see, e.g." United States v. Nelson
S.D.N.Y. · 2007 · signal: see also · confidence medium
Tr. 20, 80-81); see also United States v. Becerra, 97 F.3d 669, 671-72 (2d Cir.1996).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Hector BECERRA; Oscar Fabio Moreno, Defendants, Olga Moreno, Defendant-Appellant
43, Docket 95-1700.
Court of Appeals for the Second Circuit.
Oct 8, 1996.
97 F.3d 669
John J. Rice, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., Marian W. Payson, Asst. U.S. Atty., New York City, on the brief), for Appellee., Frederick H. Cohn, New York City, for Defendant-Appellant.
Newman, Oakes, Calabresi.
Cited by 26 opinions  |  Published
CALABRESI, Circuit Judge:

I. Background

This appeal primarily concerns the validity of the execution of an anticipatory search warrant. In February 1994, customs agents intercepted a package containing 740 grams of cocaine sent from Cali, Colombia to 1055 Walton Avenue, Apartment 6C, Bronx, New York, and addressed to Olga Moreno. [1] In order, to secure an arrest, the agents decided to attempt a controlled delivery of a substitute parcel to Moreno. They first verified with the utility and telephone companies that Moreno lived at the address listed on the package. Two agents posing as Federal Express representatives then phoned Moreno, who stated that she would be at home to receive the parcel. Subsequently, on February 18, the government applied for an anticipatory search warrant. An anticipatory warrant is a warrant that is perfected upon the occurrence of a specified future event. United States v. Garcia, 882 F.2d 699, 702 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). A magistrate judge granted the application and issued an anticipatory warrant that, by its terms, would be triggered by the delivery of the parcel.

On February 22, 1994, a customs agent posing as a Federal Express employee brought the parcel to Apartment 6C. Olga Moreno answered the door, signed for the parcel, and accepted it. About five minutes later, one Hector Becerra left the apartment with the parcel. Agents then entered the apartment and conducted a search pursuant to their warrant. Present in the apartment, in addition to Olga Moreno, were Oscar Moreno and Luis Palacio, each of whom was detained while the search proceeded. The agents found two scales — one of which had trace amounts of cocaine — in Oscar Moreno’s bedroom, approximately 90 grams of heroin in the hall closet outside Oscar Moreno’s bedroom, and two scales with cocaine residue and a bag containing various types of ammunition in the front hall closet.

On February 14, 1995, Olga Moreno and Oscar Moreno were indicted on three counts: (1) conspiracy to possess with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 846, (2) possession with intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841, and 18 U.S.C. § 2; and (3) aiding and abetting in the maintenance of a place for the purpose of manufacturing, distributing, or using controlled substances in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. At trial, a witness, Pedro Silva-Maldonado testified that he had purchased cocaine from Olga and Oscar Moreno inside Apartment 6C in December, 1992. On June 15, 1995, the jury convicted Olga Moreno on counts one and three and acquitted her on count two; a mistrial was declared as to Oscar Moreno. On December 19, 1995, the court sentenced Olga Moreno to concurrent[*671] terms of imprisonment of 68 months to be followed by a four-year term of supervised release. This appeal, in which Moreno challenges the validity of the search warrant, the admissibility of the ammunition, and the sufficiency of the evidence, ensued.

II. Discussion

A. Validity of the Warrant

We review legal issues relating to the validity of search warrants de novo. United States v. Moetamedi, 46 F.3d 225, 228 (2d Cir.1995).

Moreno first maintains that anticipatory warrants are per se unconstitutional. Whatever arguments could be made for this position, it cannot be accepted by us because, as the defendant recognizes, the law of this circuit is expressly to the contrary. See Garcia, 882 F.2d at 702-03. Second, the defendant avers that there was no probable cause for the issuance- of the warrant. This argument fails because the fact that a package containing cocaine is sent to a particular address and it, or a substitute, is accepted at that address, establishes probable cause to search those premises. See id. at 702 (“[W]hen a government official presents independent evidence indicating that delivery of contraband will, or is likely to, occur, and when the magistrate conditions the warrant on that delivery, there is sufficient probable cause to uphold the warrant.”). Third, the defendant argues that the warrant was stale. This claim is frivolous, given that the warrant was executed about five minutes after the delivery of the parcel, and that “[n]arcoties conspiracies are the very paradigm of the continuing enterprises for which the courts have relaxed the temporal requirements of non-staleness.” United States v. Rowell, 903 F.2d 899, 903 (2d Cir.1990) (citation and internal quotation marks omitted).

Finally, the defendant asserts that the warrant became invalid when Becerra took the package off the premises. This proposition is without merit because the warrant (1) explicitly stated that it would be triggered by the delivery of the parcel, and (2) was in no way conditioned on the continued presence of the package. Moreover, common sense dictates that a suspect should not be able to evade the effects of a warrant simply by getting rid of the supposed contraband or its container. The only support Moreno proffers for this position is a phrase in Garcia that the issuance of a warrant “rests ... on the expectation that the contraband will remain ... until the warrant is executed.” Garcia, 882 F.2d at 702. This quotation, however, is not only dictum, but dictum taken out of context. “Contraband” in the quotation refers to the contraband that is the object of a search pursuant to a regular warrant, not the parcel whose delivery triggered an anticipatory warrant.

In order to lay any perceived ambiguity in Garcia to rest, we here clarify that an anticipatory warrant whose perfection requires no more than the delivery of a package to, or in the presence of, the suspect, is not invalidated because the parcel is taken off the premises after delivery. The package’s relevance to such a warrant is that it suggests a relationship between drug dealers and a suspect’s premises. The warrant remains contingent until delivery because some uncertainty exists as to whether the suspect will give further credence to that relationship by accepting the package. When the suspect accepts the parcel, that uncertainty is resolved. At that point, the package becomes irrelevant. Predicating the validity of the warrant on the continued presence of the package makes much ado out of something whose significance has in fact been exhausted.

B. Admissibility of Evidence

Moreno next argues that the district court erred in admitting as evidence the ammunition found in her apartment, and in allowing an expert to identify it at trial. We review a district court’s decision to admit evidence for abuse of discretion. United States v. Beverly, 5 F.3d 633, 638 (2d Cir.1993). Moreno’s position is puzzling, given that we have “repeatedly approved the admission of firearms as evidence of narcotics conspiracies, because drug dealers commonly keep firearms on their premises as tools of the trade.” United States v. Vegas, 27 F.3d 773, 778 (2d Cir.), cert. denied, — U.S. —, 115 S.Ct. 284, 130[*672] L.Ed.2d 200 (1994) (citation and internal quotation marks omitted). Furthermore, Moreno offers no authority for her proposition that testimony identifying these “tools of the trade” is inappropriate in such circumstances. We therefore find that the district court did not abuse its discretion in allowing the ammunition and the testimony about it to be admitted.

C. Aider and Abettor Liability

Moreno finally contends that there was insufficient evidence to convict her as an aider and abettor in the knowing maintenance of a place for the purpose of manufacturing, distributing, or using a controlled substance. We review the district court’s determinations about the sufficiency of evidence de novo, but draw all inferences from any evidence before the jury in the government’s favor. United States v. Sirois, 87 F.3d 34, 38 (2d Cir.1996). Moreno’s specific claim is that the jury could not convict her as an aider and abettor because the identity of the principal is unclear. We have held that where such confusion exists, “an indictment charging aiding and abetting may be proven by demonstrating that the aider and abettor was in fact a principal.” United States v. Knoll, 16 F.3d 1313, 1323 (2d Cir.), cert. denied, — U.S. -, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994).

Moreno’s conviction as an aider and abettor was not erroneous since the jury had ample evidence on which to convict her as a principal. To convict a defendant as a principal under 21 U.S.C. § 856(a)(1), the government was required to establish beyond a reasonable doubt that the defendant (1) opened or maintained a place; (2) for the purpose of distributing or packaging controlled substances; and (3) did so knowingly. See United States v. Onick, 889 F.2d 1425, 1431 (5th Cir.1989). The jury was properly charged, and the government met its burden of proof, as to each of these elements. Olga Moreno had lived in Apartment 6C for four years. The utility and telephone bills were in her name. There was evidence that she had conducted a prior cocaine deal (with Silva-Maldonado) from that apartment. She accepted delivery of the substitute parcel. A hall closet in the common living area contained ammunition and scales with cocaine residue, as well as a jacket containing a money transmittal receipt in her name for money sent to Becerra’s home in Cali, Colombia. Another common hall closet contained heroin and cocaine. Clearly, there was sufficient evidence to convict Moreno as a principal. Accordingly, there was also sufficient evidence to convict her as an aider and abettor under Knoll.

III. Conclusion

The district court did not err in upholding the validity of the warrant. It properly admitted as evidence the ammunition found in Moreno’s apartment and permitted an expert to identify it at trial. It also correctly found that there was sufficient evidence to convict Moreno as an aider and abettor in the knowing maintenance of a place for the manufacture, distribution, and use of controlled substances.

Affirmed.

1

. While both Olga Moreno and Oscar Fabio Moreno are listed as appellants, only Olga Moreno’s appeal is before us. The surname Moreno, standing alone, refers to her.