from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:13-cr-20561-RNS-4.
HULL, JORDAN and BOGGS, [*] Circuit Judges.
Hypico Beaulieu appeals his six criminal convictions and his
sentence, all related to drug trafficking and the illegal
possession of firearms. Co-defendant Jean Oscar appeals his
two convictions for being a convicted felon in possession of
a firearm on two different dates. Their appeals present five
issues, implicating the lengthy investigation that led to
their arrests and their joint criminal trial.
careful review, and with the benefit of oral argument, we
affirm Beaulieu's and Oscar's convictions. We vacate
Beaulieu's sentence imposed under the Armed Career
Criminal Act and remand for resentencing.
October 8, 2013, a grand jury indictment in the Southern
District of Florida charged Beaulieu with conspiring to
distribute cocaine and crack cocaine, in violation of 21
U.S.C. § 846 (Count One); three counts of distributing
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts
Two, Three, and Four); stealing more than $1, 000 from the
United States, in violation of 18 U.S.C. §§ 641 and
2 (Count Five); possessing with the intent to distribute
cocaine and crack cocaine, in violation of 21 U.S.C. §
841(a)(1) (Count Six); possessing a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A) (Count Seven); and being a convicted felon in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (Count Eight).
same indictment also charged Oscar with two counts of being a
convicted felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e). The same
indictment also charged crimes against seven of
Beaulieu's and Oscar's co-defendants: Francisco
Castellon, Sandy Saintange, Christopher Dalpe, Aaron Hines,
Gary Alexander, Ronald Prudent, and Lonnie Clanton.
Ultimately, five of those co-defendants pled guilty, but not
Saintange, who is a fugitive.
2, 2014, Beaulieu, Oscar, and Dalpe proceeded to trial. At
trial, co-defendant Castellon testified against them.
Trial, Convictions, and Sentences
trial, the government presented the testimony of (1) the
undercover agent ("UA") who purchased contraband
from the defendants, (2) the Department of Homeland Security
("DHS") agent who led the investigation, and (3)
various federal and local law enforcement officers involved
in the investigation. Beaulieu, Oscar, and Dalpe did not
testify. Beaulieu did, however, offer the testimony of
Renetta Smith, his girlfriend, who testified that she owned
the firearm found in Beaulieu's residence. The parties
finished their closing arguments on June 6, 2014.
fourth day of jury deliberations, the jury returned its
verdict, convicting Beaulieu of Counts One, Three through
Six, and Eight and acquitting him of Counts Two and Seven.
The jury convicted Oscar of the two felon-in-possession
October 3, 2014, the district court sentenced Beaulieu to 210
months' imprisonment and Oscar to 144 months'
imprisonment. This timely appeal followed. We first review
the trial evidence and then discuss the five issues presented
2012, DHS launched an investigation into narcotics
trafficking in the greater Miami, Florida area. By making
controlled contraband purchases, the UA infiltrated a
neighborhood where narcotics and illegal firearms sales were
common. The UA's investigation eventually focused on
Saintonas Oscar ("Saintonas"), who brokered sales
of narcotics and firearms between the UA and multiple people.
Defendant Oscar is a cousin of Saintonas.
controlled purchases of narcotics and firearms, the UA would
call Saintonas, negotiate a price for the contraband, and
agree on a meeting time and location. The UA would drive to
the agreed-upon location to complete the transaction, with
Saintonas present to facilitate the exchange of money and
contraband between the UA and the seller.
November 7 and 15, 2012 Sales
November 7, 2012, the UA made a controlled narcotics purchase
from defendant Beaulieu. The UA called Saintonas and ordered
one ounce of cocaine. Saintonas agreed to the sale and
instructed the UA to drive him to the Food Point Mart in
Hallandale Beach, Florida. Upon arrival, the UA saw Beaulieu,
who was walking towards the Food Point Mart parking lot from
an adjacent field. While Beaulieu was approaching, the UA
paid Saintonas $1, 150 in cash. Saintonas then exited the
car, "made contact" with Beaulieu, and returned to
the UA with one ounce of cocaine.
November 15, 2012, the UA again ordered cocaine from
Saintonas. After the UA and Saintonas agreed on a price, they
set a time and location for the transaction. The UA and
Saintonas met and travelled together to the same Food Point
Mart, where Beaulieu was again present. Similar to the
transaction on November 7, Saintonas took $1, 800 in cash
from the UA upon arrival, before leaving the UA to meet with
Beaulieu. Saintonas then returned to the UA with
one-and-a-half ounces of cocaine.
January 8, 15, and 18, 2013 Sales
January 8, 2013, the UA purchased a sawed-off shotgun from
Saintonas with defendant Oscar present. After completing the
purchase, the UA spoke to Oscar about buying three more
firearms, and they negotiated the price for two of them.
January 15, 2013, the UA asked Saintonas to help him obtain a
firearm. Saintonas told the UA that there was a pistol for
sale for $300, and the UA agreed to purchase it.
that day, Saintonas and the UA arrived at Saintonas'
residence, and, in the front yard, the UA saw Oscar with the
pistol in his waistband. The UA took that firearm and gave
Saintonas $300 in cash. During the transaction, Oscar told
the UA that he had fired the pistol. Saintonas and the UA
then discussed the purchase of a rifle.
January 18, 2013, after agreeing to purchase a rifle, the UA
called Saintonas. At Saintonas' instruction, the UA
picked up Saintonas and Oscar in the UA's vehicle. Oscar
directed the UA to a second location, where they picked up a
fourth person who was not identified at trial. That fourth
person directed the UA to an apartment where the firearm was
located. Once at the apartment, Oscar and the fourth person
walked towards a stairwell. The UA gave Saintonas $700 in
cash before Saintonas also walked to the stairwell. The UA
then exited his vehicle, opened the trunk, and waited. Oscar
and the fourth person exited the stairwell and walked to the
rear of the UA's vehicle. Once at the vehicle, Oscar
pulled a rifle out of the right leg of his pants and placed
it in the UA's trunk.
February 27, 2013 Attempted Sale
February 27, 2013, the UA negotiated the purchase of two
firearms-a rifle and a pistol-from Saintonas. The UA drove to
Saintonas' residence. Saintonas approached the UA's
car, and the UA handed him $1, 800 in cash. Saintonas then
walked away from the UA's vehicle and did not return.
Saintonas never delivered the firearms. After Saintonas
departed, the UA waited for 45 minutes, repeatedly calling
Saintonas' phone to no avail. During this 45-minute
period, while waiting for the firearms, the UA noticed Oscar
arrive at Saintonas' residence. Oscar approached the UA
and told him that Saintonas had already sold the firearms but
that the UA should buy firearms directly from Oscar. During
this conversation, Oscar offered to sell the UA "a .45
April 2, 2013 Sale
April 2, 2013, Saintonas, in an effort "to make things
right, " referred the UA to Beaulieu, from whom the UA
previously had purchased cocaine. Similar to the purchases
conducted through Saintonas, the UA met Beaulieu at the Food
Point Mart. After Beaulieu entered the UA's vehicle, the
UA gave Beaulieu $1, 150 in cash in exchange for one ounce of
April 11, 2013 Attempted Sale
April 11, 2013, the UA and Beaulieu negotiated a purchase of
two ounces of cocaine for $2, 300. When the UA and Beaulieu
arrived at the Food Point Mart for the cocaine sale, the UA
noticed that there was no activity at the store and that the
only other car in the parking lot was a Ford F-150 backed
into a parking spot. The UA observed the driver of the
vehicle, who "just seemed to be staring straight
ahead." After waiting a few minutes, the UA called
Beaulieu. As he had for past transactions, Beaulieu
approached from the field adjacent to the Food Point Mart.
Once Beaulieu entered the car, the UA handed him $2, 300 in
unlike past purchases, Beaulieu did not hand the narcotics to
the UA. Instead, Beaulieu began to count the cash slowly.
While Beaulieu was counting, the driver of the Ford F-150
exited his vehicle, holding one hand to his chest. As the
driver of the Ford F-150 went to shut his door, a silver
badge fell from underneath the hand on his chest. The driver
approached the left side of the UA's vehicle.
driver of the Ford F-150 was nearing the UA's vehicle,
Beaulieu exited the UA's vehicle on the passenger's
side and ran to the front of the UA's vehicle. As
Beaulieu ran away, the driver turned, ran, got into the Ford
F-150, and began pursuing Beaulieu, who was fleeing on foot.
As the driver began his pursuit, driving westbound away from
the Food Point Mart, the UA fled the parking lot in his car.
Later that day, the UA called Beaulieu to complain about
"being ripped off, " as Beaulieu had taken the $2,
300 without giving the UA any cocaine.
same day, April 11, shortly after Beaulieu "robbed"
the UA, two Drug Enforcement Agency ("DEA") agents
stopped Beaulieu in a vehicle as he was leaving his
residence. DHS Agent Jubal Gimble, who led the investigation
against Oscar and Beaulieu, also arrived at the scene and was
present when one of the DEA agents told Beaulieu that he was
aware of the robbery and "just want[ed] the money back .
. . [t]hat's it." Beaulieu complied and also
consented when Agent Gimble and a DEA agent asked to come to
his residence to retrieve the money. Beaulieu took the law
enforcement agents inside his residence and gave them $2, 200
in cash that he had taken from the UA.
August 16, 2013 Arrests
August 16, 2013, federal and local law enforcement officers
arrested Beaulieu at his mother's residence after
obtaining an arrest warrant. A search of the home revealed
$1, 473 in cash in Beaulieu's shorts; two plastic bags of
cocaine in the bathroom; and a firearm, ammunition,
marijuana, crack cocaine, and drug trafficking paraphernalia
in Beaulieu's bedroom. DHS agents arrested Beaulieu and
transported him to a DHS office. Before questioning him, the
agents advised Beaulieu of his Miranda rights, and
Beaulieu affirmed that he understood his rights by signing a
Miranda waiver form. Beaulieu then admitted that he
had sold cocaine to Saintonas and the UA. Beaulieu also
admitted that the firearm in his bedroom was his and that he
knew he was not allowed to possess a firearm. Beaulieu
claimed that he had bought the firearm in order to protect
was arrested a few days later, on August 19, 2013.
this trial evidence as background, we turn to the five issues
first issue is Beaulieu's challenge to the district
court's answer to two written jury questions about
possession of a firearm by a convicted felon. The first
question asked: "If you are a convicted felon, does the
law specify whether or not you can knowingly be near or
around a gun or is there space specification (in the
room or just near)?" The second question asked: "If
a convicted felon, is it illegal just to be
'around' a firearm?"
defense counsel argued that the district court should respond
"no" to both questions. The government advocated
that the district court should instruct the jury to rely on
the district court's prior instructions. The district
court had fully instructed the jury already on the elements
of this firearm offense, as follows:
A defendant can be found guilty of this crime only if all of
the following facts are proved beyond a reasonable doubt:
1. The defendant knowingly possessed a firearm or
ammunition in or affecting interstate or foreign commerce
2. Before possessing the firearm, or ammunition, the
defendant had been convicted of a felony, a crime punishable
by imprisonment for more than one year.
defining firearm, ammunition, and interstate commerce, the
district court also initially instructed the jury on actual
and constructive possession as follows:
The law recognizes several kinds of possession. A person may
have actual possession, constructive possession, sole
possession or joint possession. Actual possession of a thing
occurs if a person knowingly has direct physical control of
it. Constructive possession of a thing occurs if a person
does not have actual possession of it, but has both the power
and the intention to take control over it later. Sole
possession of a thing occurs if a person is the only one to
possess it. Joint possess[ion] of a thing occurs if two or
more people share possession of it. The term
"possession" includes actual, constructive, sole
and joint possession.
did not object to this initial instruction.
receiving the jury's questions and hearing from defense
counsel and the government, the district court proposed this
answer to both questions:
Members of the jury, the definition of possession is fully
set forth on page 15 of the instructions. It is not
sufficient to be around or near a gun. The government must
prove beyond reasonable doubt that the defendant
either knowingly had actual direct physical control
of the gun or if he did not have actual possession
of it, that he had both the power and intention to take
control over the gun later.
A defendant may have sole possession if he is the only person
to possess the gun, or he may have joint possession if he and
another share possession of it.
in original). After hearing from counsel, the district court
sent a note to the jury reciting the foregoing answer.