United States v. Sanchez , 725 F.3d 1243 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH August 5, 2013
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-2084
EDWIN TORO SANCHEZ, SR.,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:10-CR-02387-WJ-1)
Caren I. Friedman, Santa Fe, New Mexico, for Defendant - Appellant.
Laura Fashing, Assistant United States Attorney, (Kenneth J. Gonzales, United
States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff -
Appellee.
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge.
Defendant Edwin Sanchez appeals his conviction in the United States
District Court for the District of New Mexico on one count of possession with
intent to distribute 100 kilograms or more of marijuana, see 21 U.S.C.
§ 841(b)(1)(B)(vii), and his sentence of 78 months’ imprisonment. The marijuana
was found in a shed behind Defendant’s home and in a detached garage on the
property. The affidavit for the warrant to search the home made no mention of
Defendant, who had not been implicated in the drug-conspiracy investigation
leading to the search. The home was searched on the mistaken belief that it was
the residence of an identified member of the conspiracy—Defendant’s daughter.
At trial the government tied Defendant to drug trafficking by providing telephone
records showing many phone calls between Defendant and a drug trafficker.
Defendant argues that (1) factual errors in the search-warrant affidavit
required suppression of the evidence obtained in the search; (2) the telephone
records should not have been admitted as evidence because they were unfairly
prejudicial; (3) the district court erred by denying him a minor-role sentencing
adjustment; (4) the court’s finding that he gave perjured testimony during trial
was not sufficiently independent of the jury’s verdict to support a sentence
enhancement for obstruction of justice; and (5) his sentence is substantively
unreasonable.
We hold that (1) the errors in the affidavit do not undermine the magistrate
judge’s finding of probable cause; (2) the phone-record evidence was relevant,
and its relevance was not substantially outweighed by the danger of unfair
prejudice; (3) the district court reasonably found that Defendant had not proved
that his role in the offense was minor; (4) the court’s factual findings supported
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its imposition of the obstruction adjustment; and (5) Defendant’s within-
guidelines sentence was substantively reasonable. Thus, exercising jurisdiction
under 28 U.S.C. § 1291, we affirm. We summarize the relevant evidence as we
discuss each issue in turn.
I. VALIDITY OF SEARCH WARRANT
In June 2010 officers of the federal Drug Enforcement Administration
(DEA) obtained a warrant to search 4113 Barbara Vista in Albuquerque for
documents relating to a drug-trafficking organization and for proceeds from the
trafficking. The affidavit supporting the warrant linked Defendant’s daughter,
Adriana Amaya, to drug trafficking. It recounted intercepted conversations
among members of the drug conspiracy setting up meetings with Amaya and
referring (in code) to currency that Amaya was to pass along for delivery to a
drug supplier in Mexico. Amaya herself participated in some conversations,
arranging meetings and, at least once, referring to money she was going to bring
to a meeting. On one occasion a conspirator gave Amaya’s cell-phone number to
another conspirator, who promptly called Amaya. The phone company’s records
showed that the number was subscribed in Amaya’s name with a listed address of
4113 Barbara Vista. The affidavit further stated that DEA officers had
determined that 4113 Barbara Vista was Amaya’s residence “[b]ased on
information received throughout this investigation from state and local
databases.” R., Vol. 1 at 150.
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Some statements in the affidavit were undisputably wrong. The most
significant error was the statement that “[t]hroughout the course of this
investigation, agents have conducted physical surveillance, video surveillance and
have spoken to some participants in order to confirm the owner or resident of
each residence.” Id. at 149–50. At the suppression hearing in district court, the
DEA agent who prepared the warrant application conceded that no video
surveillance of 4113 Barbara Vista had been conducted and that physical
surveillance had not confirmed that Amaya either resided at or owned the
residence because Amaya had never been seen there. The affidavit also stated
that agents saw “several video cameras strategically affixed to the residence,” and
that “[t]he residence is surrounded on the west side by an 8 foot cinderblock fence
that wraps around the north side of the residence concealing it from public view.”
Id. at 150–51. The affidavit suggested that these security measures showed that
the residence was equipped as a “fortress” suitable for “protect[ing] either
narcotics and/or bulk currency.” Id. at 151. When officers executed the warrant,
however, they found only one camera affixed to the residence; and the
cinderblock fence turned out to be only five or six feet high. They also
discovered that Amaya did not live at 4113 Barbara Vista, but her father,
Defendant, did.
The Fourth Amendment provides that “no Warrants shall issue, but upon
probable cause.” U.S. Const. amend. IV. “Probable cause to issue a search
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warrant exists when the supporting affidavit sets forth sufficient facts that would
lead a prudent person to believe that a search of the described premises would
uncover contraband or evidence of a crime.” United States v. Sanchez, 555 F.3d
910, 914 (10th Cir. 2009) (brackets, ellipsis, and internal quotation marks
omitted). “We afford great deference to the issuing magistrate’s probable-cause
determination unless there is no substantial basis for concluding that probable
cause existed.” Id. (ellipsis and internal quotation marks omitted).
Defendant argues that probable cause to search his house was not set forth
in the affidavit for the warrant. He first contends that “[i]t is important to
remember that when the Government submitted the warrant application for the
search of Defendant’s home, it had no information at all concerning him.” Aplt.
Br. at 27. True, but irrelevant. It is undisputed that Defendant had not been a
target of the DEA investigation and that the application to search 4113 Barbara
Vista was premised on the belief that Amaya, who was one of the targets of the
investigation, resided there. Although this belief turned out to be erroneous,
probable cause is not certainty, and there is no constitutional requirement that
evidence acquired in a search be used only against persons suspected of
wrongdoing when the search was initiated.
A more substantial objection to the search is that the affidavit contained
“patently false information.” Id. Defendant contends that “nothing could cure
the defect of false and misleading information.” Id.-5-
To determine the effect of false information in a warrant affidavit, we apply
the test set forth by the Supreme Court in Franks v. Delaware, 438 U.S. 154(1978). Under that decision, courts must determine (1) whether the affiant made
“a false statement knowingly and intentionally, or with reckless disregard for the
truth,” id. at 155, and (2) whether, absent the false statement, “the affidavit’s
remaining content is insufficient to establish probable cause,” id. at 156. If both
conditions are satisfied, “the search warrant must be voided and the fruits of the
search excluded.” Id. The truthfulness at issue is that of the affiant, not the
affiant’s sources (other than government employees, see United States v.
Campbell, 603 F.3d 1218, 1228 (10th Cir. 2010)); and honest errors by the affiant
are not grounds for suppression. As the Court explained, “[Not] every fact recited
in the warrant affidavit [must] necessarily [be] correct, for probable cause may be
founded upon hearsay and upon information received from informants, as well as
upon information within the affiant’s own knowledge that sometimes must be
garnered hastily.” Franks, 438 U.S. at 165. It suffices that “the information put
forth is believed or appropriately accepted by the affiant as true.” Id.“[N]egligence or innocent mistakes are insufficient to justify the exclusion of
evidence.” Campbell, 603 F.3d at 1228. “[W]e review only for clear error the
district court’s determinations regarding the truth or falsity of statements in the
affidavit and regarding the intentional or reckless character of such falsehoods.”
Id. (internal quotation marks omitted).
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Defendant’s challenge fails on the first prong of the Franks test. The
district court found that the inaccuracies Defendant complained of were “small
inadvertent errors,” R., Vol. 1 at 313 (Mem. Op. & Order Den. Def.’s Mot. to
Suppress Evidence at 8, United States v. Sanchez, No. CR-10-2387 WJ (D. N.M.
Nov. 22, 2010)) (Mem. Op.), and that mistakes made by the affiant and fellow
officers were not made with “reckless disregard of the truth.” Id. at 314 (Mem.
Op. at 9). Defendant has not challenged these findings on appeal, and we see no
clear error.
Further, we hold that the affidavit provided probable cause to search 4113
Barbara Vista even if the erroneous information is excluded. The affidavit stated:
During the course of this wire intercept investigation agents
intercepted Adriana Amaya talking to other members of this
organization using cellular telephone (505) 907-1214. Cricket
records show that the cellular phone is subscribed to by Adriana
Amaya with a listed address of 4113 Barbara Vista SW,
Albuquerque, NM (Subject Premises #1). Based on information
derived from this investigation referenced below, (505) 907-1214
was found to be utilized by Adriana Amaya.
Id. at 150. Defendant argues that “even if there was evidence that one piece of
mail might go to a certain address, that does not provide probable cause to believe
that the person lives at that address.” Aplt. Br. at 26. But we agree with the
district court that the quoted information was “enough even alone to lead a
prudent person to believe that there was a fair probability Amaya lived at 4113
Barbara Vista.” R., Vol. 1 at 310 (Mem. Op at 5). Perhaps contrary information
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could negate the probative value of the phone-company records. But the affidavit
also stated that agents had determined that 4113 Barbara Vista was Amaya’s
current address through “information received . . . from state and local
databases,” id. at 150; and agent testimony at the suppression hearing confirmed,
rather than contradicted, that statement. 1
Defendant relies on our rejection of a warrant in United States v. Roach,
582 F.3d 1192 (10th Cir. 2009); but Roach is easily distinguishable. The affidavit
in that case was tendered in support of an application to search 15 residences. It
stated that the current residents of the targeted buildings had been confirmed
through “investigations, which included checking for utilities information,
driver’s license records, real estate records, Wichita Police Department records,
tax records, social security records, U.S. Postal Service records, interviews and/or
surveillance.” Id. at 1202 (internal quotation marks omitted). There was no
effort to link specific investigatory techniques with particular residences to be
searched. See id. at 1203. We observed that “[a] magistrate reading the
statement would not, from the face of the affidavit, know which of the listed
methods was used to verify that [the defendant] resided at 1441 N. Minneapolis,”
and thus the magistrate judge could not “determine independently whether the
1
The district court did not clearly err in crediting the database searches.
Although defense counsel offered tax records for 2011 indicating that Amaya’s
aunt (Defendant’s sister) was the property owner, the warrant was approved in
June 2010.
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method employed to verify [the defendant’s] residency succeeded in doing so.”
Id. In contrast, the affidavit here specifically stated the investigatory techniques
used to verify Amaya’s residence at 4113 Barbara Vista: searches of state and
local databases and a telephone company’s subscription records. Thus, the
affidavit established probable cause to believe that Amaya lived at 4113 Buena
Vista.
Finally, we note that “when police officers have probable cause to believe
that a suspect is involved in drug distribution, there is also probable cause to
believe that additional evidence of drug-trafficking crimes (such as drug
paraphernalia or sales records) will be found in [her] residence.” Sanchez, 555
F.3d at 914. Defendant does not challenge that inference. 2
II. RECORDS OF CALLS BETWEEN DEFENDANT AND DRUG
TRAFFICKER
To put the evidentiary issue in context, we first summarize the pertinent
evidence. The search of Defendant’s home on June 9, 2010, established that it
was being used by a substantial marijuana-distribution business. Officers found
550 pounds of marijuana in two outbuildings—a shed that was 10 to 15 feet from
the house and a garage about twice as far from the house. Some of the marijuana
was in plastic bags and horse-feed bags in the shed. The rest was concealed in 11
2
The warrant for the initial search did not authorize a search for drugs.
After the officers found marijuana, they stopped the search and obtained another
warrant to search for drugs.
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tires in the garage and shed. Also found in the garage and shed were a metal
press suitable for fashioning bricks of marijuana, brown tape of a kind commonly
used to package drugs, and two electronic scales that could be used to weigh
different quantities of drugs. Lying on the grounds outside any building were
some tires, some intact and some cut open, one of which matched a few tires in
the shed. On the back porch was a rubber-cutting tool. Inside the house was a
key ring with keys to the shed, the garage, and Defendant’s truck; a triple-beam
scale; and two prepaid cell phones. Officers testified at trial about the use by
drug traffickers of scales, prepaid cell phones, packaging material, and home
security cameras. Also, an officer testified about the methods used to smuggle
marijuana from Mexico in tires of vehicles driven across the border. He opined
that Defendant’s home was being used as a stash house where marijuana was
stored after being removed from tires that had previously been taken off the
transit vehicles.
The central issue at trial was whether Defendant was involved in the
marijuana enterprise. He testified that on June 4 he had left for a trip to Mexico,
arriving home the evening before the June 9 search; that he had no knowledge of
the marijuana; that he had given keys to the shed and garage to his children and to
a man who leased the backyard for horses; and that he had never before seen the
rubber-cutting tool found on the porch. The government produced a border
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document showing that Defendant had entered Santa Teresa, New Mexico, from
Mexico the day before the search.
Defendant refused to blame his children for the marijuana, but his attorney
argued that they were the likely culprits. This theory of the defense probably
accounts for Defendant’s failure to object to the testimony about the investigation
leading to the search. An officer explained that the investigation originally
targeted a cocaine-trafficking organization that employed Defendant’s adult son
and adult daughter. According to the officer, intercepted calls showed that
Defendant’s son was involved with the delivery of cocaine to Albuquerque, while
his daughter was a currency courier. Defendant, however, never came up in any
of the wiretaps or surveillance leading to the search.
The evidence challenged by Defendant is phone records showing 128 calls
from March 5, 2010, to the date of the search (June 9) between a phone
subscribed to in the name of Alejandro Felix and the two prepaid cell phones
found in Defendant’s home. Felix, the evidence showed, was arrested with a load
of marijuana in September 2010 in the border town of Columbus, New Mexico,
and was later convicted of marijuana trafficking. The March date of the first call
was significant because Defendant had quit his job as an electrician during that
month. Defendant testified that after quitting his job, he fixed up and sold cars to
make ends meet. He said that he had sold Felix three cars and had been calling
Felix to inform him about upcoming auto auctions. On cross-examination,
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however, the prosecution elicited that Defendant had no bills of sale for Felix’s
purchases and that Defendant had not deposited any sale proceeds in his bank
account or reported them as income.
We review for abuse of discretion the district court’s decision to admit the
phone records. See United States v. Cerno, 529 F.3d 926, 935–36 (10th Cir.
2008). We see no abuse here. The district court could reasonably find that the
phone records were relevant as making it more probable that Defendant was
involved in marijuana trafficking. See Fed. R. Evid. 401 (“Evidence is relevant
if: (a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in determining the
action.”). One could infer from the frequent calls to a marijuana smuggler that it
was unlikely that Defendant was unaware of the marijuana operation being
conducted at his home. Of course, the calls could be explained as relating to a
different type of relationship with the smuggler, and Defendant attempted to
provide such an explanation. But the jury could reasonably disbelieve that
Defendant’s dealings with Felix were limited to car sales.
We recognize that even relevant evidence should be excluded if its
probative value is “substantially outweighed by a danger of . . . unfair prejudice.”
Fed. R. Evid. 403. And Defendant asserts that such a danger was present. He
contends that evidence of his frequent calls to a convicted drug trafficker
“provoked an emotional response in the jury and invited the jury to find
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Defendant guilty by association.” Aplt. Br. at 49. The argument is not frivolous.
Courts are most sensitive to the danger that a defendant will be convicted just
because he is a bad man or keeps bad company. But in this case the evidence of
Defendant’s relationship with Felix was unlikely to add any significant unfair
prejudice. After all, Defendant’s chief defense was to suggest that his two
children were the true culprits. Absent any evidence that Defendant had
attempted to repudiate his children’s criminal activity, he was already
significantly “tainted” by the evidence of their criminality. We note that one of
this court’s leading cases holding that evidence was inadmissible because of the
risk of guilt by association was evidence in a drug prosecution that the
defendant’s sons were drug offenders. We wrote, “[E]ven if there was some
tangential relevance to this evidence, the fact that it created the impression that
most if not all members of Defendant[’s] immediate family were involved in drug
trafficking suggests that whatever probative value it may have had was
substantially outweighed by its prejudicial effect.” United States v. Espinoza, 244
F.3d 1234, 1240 (10th Cir. 2001). Yet here it was just this sort of evidence that
Defendant used to argue his innocence. We think it unlikely that the risk of the
jury’s convicting Defendant because of “an emotional response” of “guilty by
association” was significantly increased by evidence that Defendant associated
with drug dealers in addition to his children.
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The district court did not abuse its discretion in ruling that the probative
value of the phone records was not substantially outweighed by the risk of unfair
prejudice. Admission of the evidence was not error.
III. SENTENCING ISSUES
At sentencing, the district court accepted the calculation of Defendant’s
Presentence Investigation Report (PSR) that Defendant’s base offense level was
26 because of the quantity of marijuana involved in his offense. The court
imposed a two-level increase for Defendant’s obstruction of justice through his
perjured trial testimony, resulting in an adjusted offense level of 28. The court
denied Defendant’s motion for a two-level reduction in offense level based on his
allegedly minor role in the offense. After the court determined that Defendant’s
criminal-history category was I, Defendant’s sentencing guidelines range was
78–97 months’ imprisonment. The court sentenced Defendant to 78 months’
imprisonment. Defendant challenges the court’s application of the minor-role and
obstruction-of-justice sentencing adjustments and the substantive reasonableness
of his sentence. We address each contention in turn.
A. Minor Role in Offense
Under USSG § 3B1.2(b) (2012), a defendant is entitled to a two-level
decrease in offense level if he “was a minor participant in any criminal activity.” 3
3
§ 3B1.2 also provides for a four-level “minimal participant” offense-level
reduction for a defendant who “was a minimal participant in any criminal
(continued...)
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To receive the adjustment, the defendant has “the burden to prove by a
preponderance of the evidence” that he was “less culpable than most other
participants.” United States v. Ballard, 16 F.3d 1110, 1114–15 (10th Cir. 1994);
see USSG § 3B1.2 cmt. 3(A) (2012). Defendant contends that the district court’s
denial of the reduction was improper because the evidence at trial showed that he
was merely maintaining a stash house for an unknown drug-trafficking
organization and did not show that he had been involved in transporting drugs
from Mexico, supervising others, selling drugs, or even profiting from his
maintenance of the stash house. We review the lower court’s decision for clear
error. See Ballard, 16 F.3d at 1114.
The district court was not persuaded that Defendant was a minor
participant, saying that “there’s just no evidence . . . to support, you know, a
mitigating role adjustment in this case.” R., Vol. 3 pt. 2 at 714. We see no clear
error. True, it is unclear precisely what Defendant’s role was. But it was
Defendant’s burden to show that his role was minor. The evidence is fully
consistent with his being an important component of a drug-distribution
operation. The district court was not unreasonable in failing to be persuaded
otherwise.
3
(...continued)
activity.” USSG § 3B1.2(a) (2012). Defendant sought a minimal-participant
adjustment in district court but does not pursue the point on appeal.
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Defendant relies on United States v. Hued, 338 F. Supp. 2d 453 (S.D.N.Y.
2004), in which the district court granted a minimal-participant adjustment. It
found (1) that the defendant had not become aware until a few weeks before her
arrest that her boyfriend had been using her apartment as a heroin stash house,
(2) that she had objected to his conduct, (3) that she did not derive any personal
benefit from allowing her apartment to be used, and (4) that her sole active
participation in the offense was to comply with his request on one occasion to
deliver an envelope (which she suspected to contain drugs) to a person waiting
downstairs. See id. at 454–56.
Hued is readily distinguishable. Here, the district court made no findings
like those in Hued, nor would findings of that nature be supported by the evidence
presented. Moreover, even if two district courts were somewhat inconsistent, it
does not follow that the decision of one must have been clearly erroneous. Under
the deferential clear-error standard of review, an appellate court can affirm both
of two district courts that disagree about the implications of the same facts. See
United States v. McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003) (“[W]e are not
free to substitute our judgment for that of the district judge.” (internal quotation
marks omitted)).
B. Obstruction of Justice
Defendant’s PSR stated that he had perjured himself at trial and
recommended an obstruction-of-justice enhancement to his offense level. Under
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USSG § 3C1.1 (2012), a defendant is subject to a two-offense-level increase “[i]f
(1) [he] willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction, and (2) the obstructive conduct
related to . . . [his] offense of conviction.” The guideline commentary provides
examples of specific conduct to which the guideline applies, including
“committing, suborning, or attempting to suborn perjury.” Id. cmt. n.4(B).
Defendant asserted in his district-court sentencing memorandum that the
PSR’s sole basis for recommending the adjustment was the incompatibility of his
testimony with the jury’s verdict, and he argued that a finding of perjury on this
basis would unconstitutionally burden his right to testify in his own defense. We
do not fault his statement of the governing law. “The mere fact that a defendant
testifies to his or her innocence and is later found guilty by the jury does not
automatically warrant a finding of perjury. An automatic finding of
untruthfulness, based on the verdict alone, would impinge upon the constitutional
right to testify on one’s own behalf.” United States v. Markum, 4 F.3d 891, 897
(10th Cir. 1993) (citation omitted). The district court must make “a specific
finding that independent of the jury verdict, defendant committed perjury.” Id. at
898.
The district court, however, did not commit reversible error. In imposing
the obstruction enhancement, it stated:
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Now, in this case, obviously, the defendant testified and he was
under oath, and the—at trial, the defendant’s, you know, the defense
strategy and the defense was essentially it rested on the notion that
the defendant did not have any knowledge of the marijuana, and
therefore, he was not knowingly in possession of the marijuana. In
my view, and again, based on the requirements under the guidelines
for that enhancement, it was correctly applied because and I’ll make
a finding that the defendant’s testimony, and again, taking into
account the jury’s verdict, the defendant’s testimony was perjured
testimony when he testified under oath that he had no knowledge of
the marijuana found in his garage and in his shed . . . .
R., Vol. 3 pt. 2 at 715–16 (emphasis added). The court specifically identified the
perjurious statement—Defendant’s testimony that he did not know about the
marijuana. And it did not base its finding of perjury solely on the jury’s verdict.
It stated that it was expressing “my view”; and although it took “into account the
jury’s verdict,” it stated “I’ll make a finding that . . . the defendant’s testimony
was perjured testimony.” Id. (emphasis added). Defense counsel apparently had
no questions about the basis of the court’s perjury finding, because she raised no
challenge after the court ruled.
C. Substantive Reasonableness
Defendant’s final claim is that his sentence of 78 months’ imprisonment,
which was the guidelines minimum, was substantively unreasonable. We presume
that a within-guidelines sentence is reasonable. See United States v. Kristl, 437
F.3d 1050, 1055 (10th Cir. 2006). Defendant has not overcome that presumption
with his evidence of stable employment history, family ties, and the likelihood of
deportation.
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IV. CONCLUSION
We AFFIRM Defendant’s conviction and sentence.
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