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United States v. Awer

United States Court of Appeals, First Circuit

October 29, 2014

KENT AWER, Defendant, Appellant

Petition for certiorari filed at, 11/10/2014

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Arza R. Feldman, with whom Feldman and Feldman was on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before Thompson, Baldock,[*] and Selya, Circuit Judges.


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BALDOCK, Circuit Judge.

A federal jury convicted Defendant Kent Awer of possessing cocaine base with intent to distribute. He appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. The Facts[1]

A. The Malibu

In the cool, early morning hours of May 2, 2006, an officer with the East Providence Police Department noticed a Chevy Malibu driving well over the speed limit in Rhode Island. He attempted to pull the car over. The Malibu, however, continued driving for a half-mile and changed lanes without signaling before finally submitting. The officer then approached the vehicle on foot, where he found Dianikqua Johnson behind the wheel, Defendant Kent Awer in the passenger seat, and a Mr. Simmons in the back. Upon questioning, Johnson admitted she did not have a driver's license. At the same time, Defendant leaned over Johnson and told the officer he had rented the car and they were traveling from New York City; he also produced the rental agreement. Another officer soon arrived, after which the officers arrested Johnson for being an unlicensed driver.

While securing Johnson, the two officers noticed Defendant moving suspiciously back in the Malibu.[2] As a result, the officers converged on the car's passenger side to investigate. The officer who stopped the car observed Defendant sweating and breathing heavily, so he asked Defendant to exit the car. Defendant reached for the center console instead, prompting the officer to grab his hand and pull him from the car. Moments later, Defendant admitted he had marijuana in his pocket. An officer found it and arrested Defendant. In all, only three minutes or so passed between the initial stop and Defendant's arrest.

That left Simmons, who did not have a driver's license, either. Moreover, the

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Malibu's rental agreement prohibited a third party from driving. Thus, the officers requested a tow truck for the Malibu. The officers searched the car before having it towed away. During this inventory search, the officers found over 500 grams of cocaine inside an unlocked bag in the trunk. The bag also contained men's clothes and documents bearing Defendant's name. Defendant was later indicted in the District of Rhode Island for possessing with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1).

B. The Driver

After her arrest, Johnson was placed in a police station holding cell. That same day, an attorney visited her. Johnson told this attorney she was responsible for the cocaine in the Malibu, not Defendant. The attorney advised Johnson to exercise her right not to incriminate herself. Johnson's silence, the attorney said, would be helpful for future plea negotiations. Throughout her time in prison, however, Johnson openly inculpated herself numerous times, both with handwritten statements and in conversations with fellow inmates. Her first handwritten statement, which a Rhode Island Department of Corrections lieutenant notarized on June 25, 2006, reads as follows:

To the honorable Court's
I Dianikqua Johnson would like to speak on my behalf. I Dianikqua Johnson want to notify Providence Superior Court I take sole Responsibility of this charge I am being charge with (manufacturing/possessing/delivery of cocaine.) Mr. Simmons and Mr. Awer that's Being charge with me had no knowledge of my criminal activity. I also would like to thank the courts for taking time out to listen to this matter
Truthfully yours
Dianikqua Johnson

Her second statement, which was not notarized or dated, reads:

I Dianikqua Johnson, would like to make a statement on my behalf. The charges I am being charge with Mr. Awer and Mr. Simmons I take full Responsibility of those charges. I acted alone. They didn't have no knowledge of my criminal activity.
On May 01, 2006, I called Mr. Awer to make sure he could give me a ride to Mass. He stated that he will give me a Ride. And would I Be able to drive Because he's Real tierd. I told him yes. This was around 8 pm. 15 minutes later he call to let me know he was downstairs in the parking lot of my grandmother projects (tompkins).
When I Reached the car Awer was already Relaxing in the passenger seat. I put my bags down by the trunk and I walk over to the driver side to open the door so I can pop the trunck on the car key chain. While I was at the trunk of the car, I took the packages of drugs were being charge out my hand Bag then put them in Awer's Black Ascot Bag. Because I felt his Bag had more spots to hide the drugs in it and it did. I then got in the car and Mr. Awer told me where to go to pick his friend Mr. Simmons up Before leaving for Mass. Picked him up on Wilougbie ave at 9 pm. I Got the Drugs from my uncle. Well I stole them; I know we needed the money so I figure instead of my uncle using all of them, I can get rid of some. Sell a little and us a little.

Johnson also repeated her story to a later-appointed attorney. Time and again, Johnson expressed intense worry that Defendant would be held responsible for her actions. She even refused a plea agreement

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because she feared hurting Defendant.

Tragically, in an apparently unrelated imbroglio, Johnson was murdered before she could ...

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