[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 27, 2012
No. 11-15316
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 1:11-cr-20191-DMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MIGUEL REYES-VALENTINO,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 27, 2012)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Miguel Reyes-Valentino appeals his convictions and sentences for using a
passport secured by a false statement in violation of
18 U.S.C. § 1542, and for
attempting to gain entry into the United States falsely by representing himself to be
a citizen of the United States to a United States Customs and Border Protection
officer in violation of
18 U.S.C. § 911. Reyes-Valentino contends that the district
court erred by denying his motion to suppress statements he made to a customs
officer at an airport.
I.
Reyes-Valentino, a native of Mexico, tried to enter the United States through
Miami International Airport with a fraudulent passport, telling customs officers he
was a United States citizen from Puerto Rico. A grand jury indicted him for
violating
18 U.S.C. §§ 1542 and 911. Shortly after his arraignment, the district
court set a deadline of April 14, 2011, for all pretrial motions under Federal Rule
of Criminal Procedure 12(c). On May 13, 2011, the public defender filed a motion
to withdraw as counsel because Reyes-Valentino was “totally dissatisfied” with
him and believed he was not “fighting” for him. The district court granted that
motion and then appointed Reyes-Valentino new counsel on May 25, 2011.
On June 6, 2011, Reyes-Valentino signed a plea agreement and pleaded
guilty to violating
18 U.S.C. § 1542. More than a month later, Reyes-Valentino
2
moved pro se to remove his new counsel, arguing, among other things, that his
attorney coerced and misled him to take the plea deal. He then made a motion to
withdraw his plea. The district court granted both motions, vacating the guilty plea
and appointing Reyes-Valentino a third attorney on July 27, 2011. The trial was
set for August 24, 2011.
On August 17, 2011, a week before trial, the third attorney moved to
suppress Reyes-Valentino’s statements to a customs officer at the Miami airport.
The motion argued that, in violation of Reyes-Valentino’s constitutional rights, the
customs officer refused his request for an attorney and coerced him into making
incriminating statements, partly by withholding his diabetes medicine in exchange
for his cooperation.
The district court denied the motion as untimely. But it held a suppression
hearing the day before trial to preserve the merits of Reyes-Valentino’s argument
for the record. It then denied his motion on the merits, finding that there was no
custodial interrogation and that Reyes-Valentino was not credible.
After a one-day trial, a jury convicted Reyes-Valentino of both counts. He
renewed his objections to the admission of the statements, which the district court
denied. The court then sentenced him to 21 months in prison. He now appeals.
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II.
We review only for an abuse of discretion a district court’s denial of a
motion to suppress as untimely. United States v. Milian-Rodriguez,
828 F.2d 679,
683 (11th Cir. 1987). A motion to suppress evidence must be made before trial.
Fed. R. Crim. P. 12(b)(3)(C). A district court, however, may “at the arraignment or
as soon afterward as practicable, set a deadline for the parties to make pretrial
motions and may also schedule a motion hearing.” Fed. R. Crim. P. 12(c). “A
party waives any Rule 12(b)(3) defense, objection, or request not raised by the
deadline the court sets under Rule 12(c) or by any extension the court provides.”
Fed. R. Crim. P. 12(e). If a party demonstrates good cause, the district court may
grant relief from the waiver.
Id. “Good cause is not shown where the defendant
had all the information necessary to bring a Rule 12(b) motion before the date set
for pretrial motions, but failed to file it by that date.” United States v. Seher,
562
F.3d 1344, 1359 n.15 (11th Cir. 2009).
In this case, Reyes-Valentino’s third attorney argues that he could not
review the discovery and file the suppression motion before the Rule 12(c)
deadline because of his late appointment. However, the factual basis for the
allegations that the customs officer allegedly coerced Reyes-Valentino’s statements
by denying his request for an attorney and withholding his diabetes medicine were
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known to Reyes-Valentino at all times. Even though Reyes-Valentino had all the
information necessary to bring a Rule 12(b) motion before the deadline, he did not
file his motion to suppress until four months after the district court’s filing deadline
had passed and a week before trial. Therefore, he waived his opportunity to file
that suppression motion. See Fed. R. Crim. P. 12(e). Nor has Reyes-Valentino
demonstrated good cause why he did not present those allegations to his two
previous attorneys or, if he did, why his counsel never pursued them.1 See Seher,
562 F.3d at 1359 n.15.
AFFIRMED.
1
The district court’s consideration of the merits did not excuse Reyes-Valentino’s
waiver. See Milian-Rodriguez,
828 F.2d at 683.
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