United States v. Maximo Gondres-Medrano ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4105
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MAXIMO H. GONDRES-MEDRANO,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
George L. Russell, III, U.S. District Court Judge. (1:17-cr-00507-GLR-1)
Argued: May 7, 2021 Decided: July 8, 2021
Before FLOYD, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Floyd
and Judge Quattlebaum joined.
ARGUED: Alfred Guillaume, III, LAW OFFICES OF ALFRED GUILLAUME III,
Greenbelt, Maryland, for Appellant. Jeffrey Morgan Hann, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Robert K. Hur,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
RICHARDSON, Circuit Judge:
Confidential informants are often a fixture of investigations in popular media. And
real-life informants provide vital help to law enforcement, especially in drug cases. This
case is a prime example. In 2017, a known confidential informant with a track record of
providing reliable information told law enforcement that Maximo Humberto Gondres-
Medrano was trafficking drugs in Baltimore, Maryland. The informant’s insight led law
enforcement to watch Gondres-Medrano put a shoebox in the informant’s car and drive off
to allegedly sell heroin. When the car was stopped, officers found heroin in the shoebox.
Gondres-Medrano was indicted, convicted, and sentenced to 121 months in prison.
Gondres-Medrano appeals three issues. First, he argues that the police lacked
probable cause to search the shoebox so the heroin should have been suppressed. Second,
he argues that the court erred in admitting a video that showed him opening a heroin
package because the unfair prejudice from the video was too high under Rule 403. Finally,
he claims that the court erred in applying an obstruction-of-justice enhancement for perjury
during sentencing. We disagree and affirm.
I. Background
A. The investigation and arrest
In 2017, a long-standing confidential informant told FBI Task Force Officer Mark
Williams that an individual later identified as the defendant, Gondres-Medrano, was
involved in heroin and cocaine trafficking between New York and Baltimore. This
informant had been used several times before, leading to several arrests. So Williams
began to investigate. The investigation included Williams listening to a recorded
2
conversation between the informant and a person the informant identified as Gondres-
Medrano. Gondres-Medrano talked about trafficking cocaine between his place in
Maryland and New York. Based on this information, Williams obtained a warrant to track
Gondres-Medrano’s cellphone. Williams also learned Gondres-Medrano’s full name and
address in Baltimore. Williams then got in contact with Homeland Security Investigations
Special Agent Edward Kelly who ran an immigration check and learned that Gondres-
Medrano had overstayed his immigration visa, had a disqualifying drug conviction, and
was subject to removal. Agent Kelly issued a Notice to Appear and obtained an arrest
warrant for Gondres-Medrano.
The informant then told Williams that Gondres-Medrano intended to transport
heroin from his residence on September 8th and that the informant was to provide
transportation. So the officers set up surveillance that day at Gondres-Medrano’s
residence. Before arriving at Gondres-Medrano’s residence, the informant and his car were
searched by the officers. The officers then watched the informant pull up to the residence,
get out and enter the house, and return with Gondres-Medrano two or three minutes later.
Agent Kelly positively identified Gondres-Medrano, connecting him to the residence
associated with the tracked phone number. The officers then witnessed Gondres-Medrano
carry a shoebox that he put in the backseat before getting in the passenger side of the
informant’s car and driving off. The officers stopped the car and handcuffed Gondres-
Medrano and the informant. The officers then found the shoebox on the backseat
floorboard. They opened it and found a white powdery substance wrapped in gray tape.
Later testing established that the substance was heroin and fentanyl.
3
Gondres-Medrano waived his Miranda rights and consented to a search of his phone
and apartment. The officers then interviewed him and asked, “How did that box get to
you?” and “How did you get possession of that box?” J.A. 385. Gondres-Medrano
responded, “It’s that . . . they were sending it.” Id. Gondres-Medrano then asked if he
could show them a video on his cellphone, explaining: “I will show them on there, how it
arrived.” J.A. 386 (emphasis added). The video on his phone from weeks before the arrest
showed him opening an envelope, peeling the liner apart, and removing a hidden plastic
pouch with a white substance while giving a thumbs up to the camera, all at his residence.
The video also showed a digital scale. Phone records showed that he sent the video to at
least one person. When asked about the substance, Gondres-Medrano said it was 333
grams of heroin that he received at his house. Later, Gondres-Medrano discussed various
cocaine and heroin sources, noting that someone named “Freddie” sent the seized drugs
and that he was taking the drugs to a friend, who would pay him. The government also
retrieved an image from Gondres-Medrano’s phone that showed a shoebox matching the
one recovered from the car.
B. Motions and trial
Gondres-Medrano was charged with possession with intent to distribute a mixture
containing fentanyl and heroin. See 21 U.S.C. § 841(a)(1).
Gondres-Medrano sought to suppress and exclude certain evidence. First, he moved
to suppress the drugs found in the car as a violation of his Fourth Amendment rights,
arguing there was no warrant, probable cause, or warrant exception for the search and
seizure. The court denied the motion, ruling that the search was lawful. The court did so
4
because it found that the informant was reliable and there was “no question that law
enforcement at the very least had an articulable suspicion, if not probable cause that the
defendant was, in fact, engaged in a narcotics transaction.” J.A. 113. The court then said
the search met the automobile exception. The court also said there was probable cause to
search the box based on the corroborated narcotics activity associated with Gondres-
Medrano.
Gondres-Medrano also tried to exclude the video. He argued that the evidence
would confuse the jury and be prejudicial under Federal Rule of Evidence 403. The court
rejected his argument, allowing the video to show intent, knowledge, and that the drugs in
the video were the same as the drugs in the shoebox. Gondres-Medrano asked about a
potential limiting instruction as to what the video could be used for, and the court discussed
options. The court did not make a decision about an instruction and noted that Gondres-
Medrano might change his mind about whether he wanted such a limiting instruction
because an instruction might highlight the video in a way that would ultimately hurt his
case.
The trial proceeded with the agents discussing the investigation, drugs, the video,
and the interview. Gondres-Medrano decided to testify about where he got the drugs and
about the video. He said he gave the video to the police because he recorded the video to
“file a complaint” against the person who had sent him the package. He testified that he
expected the package to contain documents when he received it. However, once Gondres-
Medrano followed up with the person who sent him the package, that person told Gondres-
Medrano that the package contained drugs and there would be problems with Gondres-
5
Medrano’s family if he did not deliver the drugs to New York. He later admitted to
bringing those drugs to New York but said he did so under duress. He claimed that he had
never handled drugs or seen them in person before that package arrived. Gondres-Medrano
then claimed that on September 8th, his friend had come to Gondres-Medrano’s house to
pick up drugs that Freddie had dropped off there a week earlier. Although Gondres-
Medrano had spoken to Freddie on his friend’s behalf, Gondres-Medrano denied any
further participation in the deal. He claimed that after Freddie brought him the drugs, he
agreed to keep the drugs at his house but never looked inside the package or used the drugs.
Finally, Gondres-Medrano claimed that the friend came to his home on September 8th and
that it was him, not Gondres-Medrano, who carried the shoebox to the car that day.
During cross, Gondres-Medrano said the video was taken two weeks before his
arrest and acknowledged the digital scale in the video. But he maintained that he only
recorded the video to provide evidence to the police. Even so, he testified that he did not,
in fact, notify the police at any point before his arrest and that he delivered the drugs to a
person in New York and agreed to get paid for future deliveries. Gondres-Medrano then
explained that the drugs in the shoebox were different from the drugs seen on the video.
He reiterated that he had been threatened when he received the packaged drugs and that he
was “worried” and under duress when he opened the drugs on the video. In response, the
government replayed the scene in the video where Gondres-Medrano provides a thumbs
up sign to the camera. The defense rested, and the jury found Gondres-Medrano guilty.
6
C. Sentencing and appeal
Based on the drug weight and his criminal history, Gondres-Medrano faced a
guidelines range of 97 to 121 months. But the court also applied a two-level enhancement
for obstruction of justice. U.S.S.G. § 3C1.1. So his guidelines range increased to 121 to
151 months. Either way, Gondres-Medrano faced a 10-year (120-month) statutory
minimum. 21 U.S.C. § 841(b)(1)(A)(vi).
Gondres-Medrano argued that the obstruction enhancement should not be applied.
The government countered that Gondres-Medrano had committed perjury by purposefully
lying about the package and drugs in the video, which were material facts. Gondres-
Medrano asserted that his testimony did not amount to perjury, either because it was not
material or because the evidence failed to show it was false. The court found that Gondres-
Medrano presented perjured testimony and that the two-level enhancement would apply.
The court sentenced Gondres-Medrano to 121 months in prison and noted that it would
have imposed the same sentence even without the obstruction enhancement.
Gondres-Medrano timely appeals the district court’s decision to admit the drugs
from the shoebox and the video and to apply the obstruction enhancement. The district
court had jurisdiction over this federal criminal case. See 18 U.S.C. § 3231. And we have
jurisdiction on appeal. See 18 U.S.C. § 3742(a); 28 U.S.C. § 1291.
II. Analysis
A. Probable cause existed to search the shoebox
Police, without a warrant, may “search an automobile and the containers within it
where they have probable cause to believe contraband or evidence is contained.”
7
California v. Acevedo, 500 U.S. 565, 580 (1991). At base, Gondres-Medrano claims the
government lacked probable cause. We disagree. 1 The information from the known
reliable informant established probable cause that the shoebox contained heroin.
Probable cause has long been understood to encompass circumstances that, while
less than a preponderance, “warrant suspicion.” Locke v. United States, 11 U.S. (7 Cranch)
339, 348 (1813). And it is the “combined circumstances,” and not each circumstance
“separately,” by which we must evaluate probable cause. Id. at 347–48. As the Supreme
Court explained, probable cause turns on a “totality-of-the-circumstances analysis” and
requires “a practical, common-sense decision whether . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983).
One circumstance law enforcement relies on is information provided by citizens,
whether victims, bystanders, or informants. Citizen informants in particular often
contribute to probable cause. But the use of informants has long bedeviled courts
considering searches and seizures under the Fourth Amendment.
For example, in 1932 the Supreme Court relied on information provided by an
informant to find probable cause to stop and search a car. Husty v. United States, 282 U.S.
1We review probable-cause determinations de novo but must “take care both to
review findings of historical fact only for clear error and to give due weight to inferences
drawn from those facts by resident judges and local law enforcement officers.” Ornelas v.
United States, 517 U.S. 690, 699 (1996). As a result, “we must construe the evidence in
the light most favorable to the prevailing party.” United States v. Lewis, 606 F.3d 193, 197
(4th Cir. 2010). In doing so, we are not limited by the evidence at the suppression hearing
and can consider the evidence produced at trial. United States v. Han, 74 F.3d 537, 539
(4th Cir. 1996); Carroll v. United States, 267 U.S. 132, 162 (1925).
8
694, 701 (1931). The officer was “well acquainted with his informant,” who had provided
“similar information to the [officer] before, which had always been found to be reliable.”
Id. at 700. By telephone, the informant explained that “Husty had two loads of liquor in
automobiles of a particular make and description, parked in particular places on named
streets.” Id. The Court found that information, along with the officer’s own knowledge of
Husty’s prior illegal activities, their discovery of the automobiles on the identified street
along with Husty and two companions, and the companions’ prompt escape attempt when
hailed by officers, provided the officers with probable cause. Id. at 701; see also Draper
v. United States, 358 U.S. 307, 309, 312–13 (1959) (information from an informant who
had proved reliable in the past established probable cause when, as the informant said
would happen, an unknown man matching the informant’s description exited from a certain
train on one of the two days the informant had predicted, wearing particular clothing,
carrying a tan zipper bag, and walking fast).
In the 1960s, the Supreme Court adopted a two-part test for evaluating an
informant’s information. See Aguilar v. Texas, 378 U.S. 108, 114 (1964); Spinelli v. United
States, 393 U.S. 410, 413, 415–17 (1969). Aguilar and Spinelli required police to
separately establish both (1) the informant’s basis of knowledge and (2) the tip’s veracity,
that is, the informant’s credibility. Aguilar, 378 U.S. at 114.
In 1983, however, the Supreme Court rejected this rigid two-part test, returning to
“the totality-of-the-circumstances analysis that traditionally has informed probable cause
determinations.” Gates, 462 U.S. at 238. In Gates, the Court found probable cause based
on an anonymous handwritten letter stating that the Gates were selling drugs at their home
9
in Bloomingdale, Illinois. Id. at 244–46. The letter described how the Gates obtained their
drugs: the wife drove to Florida and left their car to be loaded with drugs while the husband
flew to Florida and drove their car back. Id. at 225. The letter explained that the wife
would be driving down again on May 3, with the husband flying down a few days later.
Id. After confirming the Gates lived in Bloomingdale, officers surveilled the husband on
a flight to Florida on May 5, after which he checked into a hotel room in his wife’s name.
Id. at 226. The next morning the Gates were seen leaving in a car with plates registered to
a different car owned by Gates. Id. at 226–27. They left on an interstate highway used by
travelers to drive from Florida to Chicago. Id. Based on these facts, a state-court judge
found probable cause to issue a search warrant for the car and residence for when they
returned. Id. at 226.
The Supreme Court acknowledged that the anonymous letter, standing alone, would
not provide probable cause. Id. at 227. But the Court rejected the “elaborate set of legal
rules that have developed among various lower courts to enforce the ‘two-pronged test.’”
Id. at 229. Instead, the Court returned to the “practical, nontechnical conception” of
probable cause. Id. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).
An informant’s “veracity” or “reliability” and his “basis of knowledge” are relevant
considerations in the totality-of-the-circumstances analysis, but neither consideration is
necessary. Id. at 230; see also Massachusetts v. Upton, 466 U.S. 727, 732 (1984). For in
“determining the overall reliability of a tip,” a “deficiency” in one consideration may be
“compensated for” by some other indicia of reliability or “a strong showing as to” another
consideration. Gates, 462 U.S. at 233. The Court then found that the police corroboration
10
of some details in the informant’s letter, including the Gates’ predicted actions,
“indicated . . . that the informant’s other assertions also were true” and made up for the
letter’s anonymity. Id. at 243–46. The corroboration also reflected the informant had
firsthand knowledge of the Gates’ activities. Id. at 245–46. In this way, the Court
emphasized that the corroboration verified the informant’s reliability. And this “suffices
for the practical, common-sense judgment called for in making a probable cause
determination.” Id. at 244.
After Gates, the Court has emphasized the corroborating aspects of an anonymous
tip as establishing the anonymous informant’s reliability. See Alabama v. White, 496 U.S.
325, 329 (1990). Standing alone, an anonymous tipster’s veracity or reliability is “by
hypothesis largely unknown, and unknowable.” Id. (quoting Gates, 462 U.S. at 237). But
where a tipster is shown to be right about some details, he is probably right about other
alleged facts, including the alleged criminal activity, justifying reliance on the anonymous
tip. Id. at 331–32. For example, in White, an anonymous call reported that Vanessa White
would be leaving a particular apartment at a particular time in a brown Plymouth station
wagon with a broken right taillight to go to a particular motel. Id. at 327. The tip also
recounted that she would have a brown case with an ounce of cocaine. Id. At the indicated
time, police saw a woman with nothing in her hands leave the apartment and get in the
described station wagon. Id. After she began on the path to the hotel, police stopped the
car and found marijuana in a case inside. Id. Relying on the corroboration of the tip’s
predictive aspects, the Court found there was good reason to believe the caller was honest,
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well informed, and reliable. Id. at 332; cf. United States v. Perkins, 363 F.3d 317, 325 (4th
Cir. 2004).
Similarly, corroboration can confirm the reliability of an informant who is known
(rather than anonymous) but whose credibility is unknown to the officer. See United States
v. Harris, 403 U.S. 573, 579–84 (1971); United States v. White, 549 F.3d 946, 952 (4th
Cir. 2008). 2 Some corroboration is still required with no track record of reliability. 3 But
since a known informant exposes himself to possible criminal prosecution or other
consequences for giving false information, his reliability is enhanced and less
corroboration is required as compared to an anonymous informant. 4
2
This often arises when a recently arrested person provides the police information
about other potential targets. See White, 549 F.3d at 952; United States v. Miller, 925 F.2d
695, 699–700 (4th Cir. 1991).
3
In Adams v. Williams, 407 U.S. 143, 146 (1972), the Court addressed a known
informant with no indication that prior information had proven reliable. In that context,
the Court found reasonable suspicion but questioned whether such an informant’s
unverified tip could establish probable cause. Id. at 147. Similarly, in considering a
recently arrested informant with no known history of reliability, we generally stated that
“[a]n informant’s tip is rarely adequate on its own to support a finding of probable cause.”
Miller, 925 F.2d at 698. Without a record of reliability, even a known informant must be
verified by the nature of the statement or other information showing the informant is honest
and well informed.
4
Williams, 407 U.S. at 146–47 (1972); White, 549 F.3d at 952; Miller, 925 F.2d at
699; see also Navarette v. California, 572 U.S. 393, 400–01 (2014) (finding a tipster
reliable when the tipster’s statement about being run off the road by a specific vehicle was
“made under the stress of excitement caused by a startling event” using the 911 system,
which recorded information about the caller and could subject the caller to prosecution);
Harris, 403 U.S. at 583–84 (finding known informant with no track record making
admissions of having committed crimes credible enough to support finding probable cause
because statements against penal interest carry their own indicia of credibility); United
States v. Gagnon, 373 F.3d 230, 236 (2d Cir. 2004) (A “face-to-face informant must . . . be
12
But corroborating details of an informant’s tip is not the only way to establish the
informant’s reliability. See Miller, 925 F.2d at 698–99 (explaining that corroboration need
not come from independent investigation). Just as the veracity of the anonymous tip made
up for the tipster’s total lack of reliability or accountability in Gates, so too can other factors
compensate for deficiencies. In considering the reliability of a known informant, the
Supreme Court has repeatedly emphasized the import of an informant’s track record of
providing reliable information. See, e.g., McCray v. Illinois, 386 U.S. 300, 303–04 (1967)
(finding “no doubt” that probable cause existed based on information provided by an
informant with a record of providing “information concerning narcotics ‘20 or 25 times’”
which had led to arrests and convictions). This is because the informant’s track record
provides verification and corroboration that his future tips will likewise be reliable. See
Draper, 358 U.S. at 313 (finding probable cause based on an informant when the officer
“had always found the information given [by the informant] to be accurate and reliable”);
Husty, 282 U.S. at 700 (relying on an informant who was “well acquainted” with the officer
and who had given “similar information” to the officer before, “which had always been
found to be reliable”); see also Florida v. J.L., 529 U.S. 266, 270 (2000) (finding no
reasonable suspicion based on a vague anonymous tip and contrasting that with “a known
informant whose reputation can be assessed and who can be held responsible if her
allegations turn out to be fabricated”). 5 Indeed, corroboration can come from “showing
thought more reliable than an anonymous telephone tipster, for the former runs the greater
risk that he may be held accountable if his information proves false.”).
See also United States v. Ross, 456 U.S. 798, 800 (1982) (describing “an informant
5
who had previously proved to be reliable”); Arkansas v. Sanders, 442 U.S. 753, 761 (1979)
13
the trustworthiness of the informant, such as a history of providing accurate (corroborated)
information.” United States v. Long, 774 F.3d 653, 659 (10th Cir. 2014). So “probable
cause can be based solely on information from a reliable, credible informant.” Id. at 660;
see also United States v. Searcy, 664 F.3d 1119, 1123–24 (7th Cir. 2011) (noting that an
informant with a track record is less likely to be biased against a target since they have
provided information against multiple targets).
But we still look to the totality of the circumstances. Gates, 462 U.S. at 230–31.
And so outlandish, vague, or contradictory information provided by a known reliable
informant, even an informant who had given verified tips before, may defeat probable
cause. So too may corroboration and independent police work strengthen the probable
cause deriving from information provided by a known and reliable informant. While the
“practical, nontechnical conception” of probable cause fails to provide rigid rules, these
considerations provide a framework for evaluating an informant’s information in
establishing probable cause.
In this case, we have little doubt that the officers had probable cause to believe the
shoebox contained drugs. The informant providing that information was known and
reliable, having given the police accurate information in the past that led to several
(finding “ample probable cause to believe that respondent’s green suitcase contained
marihuana” based on information from a “previously reliable informant”), abrogated on
other grounds by Acevedo, 500 U.S. at 576, and Ross, 456 U.S. at 815, 824; cf. United
States v. Shepherd, 714 F.2d 316, 317 (4th Cir. 1983) (crediting the tip because the source
was a “highly reliable informant” whose tips “netted over twenty-five convictions”).
14
successful arrests. The officers had also met with this informant and could evaluate his
demeanor and hold him responsible for lying.
Moreover, the officers corroborated significant parts of the informant’s information.
Williams overheard a phone call between the informant and someone the informant
identified as Gondres-Medrano discussing trafficking cocaine between Maryland and New
York. This provided probable cause to obtain a warrant to track Gondres-Medrano’s
cellphone. The officers also confirmed Gondres-Medrano’s identity and residence and
learned of his prior drug conviction and immigration history. See United States v. Bynum,
293 F.3d 192, 197–98 (4th Cir. 2002) (relying on a target’s prior criminal activity); Miller,
925 F.2d at 699–700 (same). Then on September 8th, officers met with the informant,
searched him and the car, then surveyed Gondres-Medrano’s house and told the informant
when to arrive. Consistent with the informant’s assertion that Gondres-Medrano would be
transporting drugs from his residence on that day, when the informant pulled up to the
residence, Gondres-Medrano let him in, came out with a shoebox, and got in the car to
drive away. That Gondres-Medrano climbed into the informant’s car with a shoebox at the
time and place described shows the informant’s firsthand knowledge and corroborates his
story. These circumstances established probable cause to believe that Gondres-Medrano
was trafficking drugs and had drugs in the shoebox.
Gondres-Medrano and the government spar over how to apply a few cases, but none
offer much guidance. First, in Miller, 925 F.2d 695, we found probable cause based on a
tip from a recently arrested individual with no record of providing reliable information. Id.at 699–700. The officers corroborated the informant’s predictive details: The target would
15
arrive from New York by bus on a certain date, described her clothes, identified her in a
picture, and said she would be carrying a brown bag. Id. at 697. And the officer knew the
target based on previous drug charges. Id. So even though the source had no history of
reliability, we found probable cause because the informant had an interest in providing
accurate information, would face consequences for lying, much of the tip was corroborated,
and the officer knew the target from the previous drug charge. Id. at 699–700. 6
Gondres-Medrano also relies on United States v. Wilhelm, 80 F.3d 116, 117, 120
(4th Cir. 1996), where we found no probable cause based on an unnamed, unknown
informant’s claims that he believed he saw the defendant selling marijuana at his house
and gave the police directions to the house. The government relied on “conclusory
descriptions” of the informant’s demeanor and maturity to prove that the informant was
reliable. Id. at 120. With no other information about the informant’s reliability, the lack
of corroboration and meaningful indications of the informant’s reliability doomed the
warrant. Id. at 121. 7 Unlike Miller and Wilhelm, the officers here relied on a known
informant with a track record of providing reliable information.
6
The parties disagree over whose side United States v. Blackwood, 913 F.2d 139(4th Cir. 1990), supports. There, the police were given information that in the previous
seventy-two hours crack cocaine was sold from the defendant’s residence, prompting the
police to enlist a reliable informant who explained how he would conduct a controlled buy
from the defendant. Id. at 141. The police watched the purchase go just as the informant
said and then field tested the drugs and identified them as crack. Id. We found probable
cause based on the totality of the circumstances, as the police had received information
from a reliable informant and had corroborated the information received. Id. at 142.
Although the police’s independent investigation helped establish probable cause, such
evidence is not required. Just because something is sufficient does not render it necessary.
16
With probable cause, the police could search the shoebox under the automobile
exception. Maryland v. Dyson, 527 U.S. 465, 467 (1999); Acevedo, 500 U.S. at 580; see
also Shepherd, 714 F.2d at 316–17 (finding probable cause to search vehicle based on a
reliable informant telling the police about a moonshining operation at a residence and law
enforcement surveilling the residence and seeing the defendant put translucent jugs in the
trunk). 8
B. The court did not abuse its discretion in admitting the video under
Rule 403
Federal Rule of Evidence 403 says that the “court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” (emphasis added). “This Court reviews
evidentiary rulings for abuse of discretion.” United States v. Hill, 322 F.3d 301, 304 (4th
7
We distinguished Wilhelm in Bynum because the police in Bynum used a reliable
informant, knew that the defendant was a felon, knew that he resided at the location, and
had seized drugs at that location less than four months earlier. Bynum, 293 F.3d at 197–
98; see also United States v. Lalor, 996 F.2d 1578, 1581 (4th Cir. 1993) (finding sufficient
evidence to conclude the informants were reliable where the police corroborated the
informants’ information about the defendant’s address, vehicle, and alias and determined
that he had been arrested for drug possession just a few days before).
8
Gondres-Medrano also argues that the automobile exception is inapplicable here
because the vehicle was not readily mobile during the search as he was detained first. This
argument has been rejected by the Supreme Court many times, making it clear that the car
need only be capable of movement. See Florida v. Meyers, 466 U.S. 380, 382 (1984).
(upholding a search after the car had been impounded); Michigan v. Thomas, 458 U.S. 259,
261 (1982) (same); Texas v. White, 423 U.S. 67, 68 (1975) (same); see also Pennsylvania
v. Labron, 518 U.S. 938, 940 (1996) (explaining that past cases require only probable cause
and that the vehicle be “readily mobile” to permit a search).
17
Cir. 2003). But when reviewing a district court’s balancing under Rule 403, we apply a
“highly deferential” standard of review, and do not overturn the district court’s decision
“‘except under the most extraordinary circumstances, where that discretion has been
plainly abused.’” United States v. Hassan, 742 F.3d 104, 132 (4th Cir. 2014) (quoting
United States v. Udeozor, 515 F.3d 260, 265 (4th Cir. 2008)). And since the probative
value must be “substantially outweighed” by one or more of the listed dangers, relevant
evidence should be excluded only “when there is a genuine risk that the emotions of a jury
will be excited to irrational behavior, and this risk is disproportionate to the probative value
of the offered evidence.” Id. (quoting United States v. Siegel, 536 F.3d 306, 319 (4th Cir.
2008)). The court here acted well within its wide discretion.
Gondres-Medrano argues that the drugs in the video are different from the drugs in
the shoebox, so admitting the video might confuse the jury and unfairly prejudice him with
no relevance or real probative value. Not so. The video helped establish the elements of
the possession-with-intent-to-distribute charge: possession, knowledge, and intent. United
States v. Randall, 171 F.3d 195, 209 (4th Cir. 1999).
The video shows Gondres-Medrano’s handling and comfort with drugs. He chose
to film himself taking the drugs out and showed no surprise when drugs were inside. Upon
carefully removing the drugs from a hidden liner, he gave a thumbs up. And a digital scale
could be seen behind him. It remains unclear whether the heroin in the video was the same
as the heroin seized in the shoebox. Gondres-Medrano argues the government failed to
prove that they were. But there was some evidence that the drugs were the same, as
18
Gondres-Medrano said he would show the police the video to explain “how it arrived” in
response to questions about the shoebox drugs.
The video also undermined Gondres-Medrano’s primary defense at trial: that he
held the drugs under duress and did not intend to distribute them. Nothing about Gondres-
Medrano’s actions or reactions on the video suggests any duress or distress in receiving the
heroin. Quite the contrary. That Gondres-Medrano began filming before opening the
package, quickly removed the drugs from a hidden liner, was unsurprised by the drugs,
gave a thumbs up, and had a scale nearby all convey knowledge and intent rather than
duress.
Gondres-Medrano also argued that he made the video to give to police, so it was
evidence that he never intended to distribute the heroin. But Gondres-Medrano did not
give the video to police until he was arrested. And by that time, he had circulated it to
others. The video contradicts Gondres-Medrano’s testimony, which undermines his
credibility, an important part of any case in which the defense turns on the defendant’s
testimony and state of mind.
And while he essentially admitted that he knew that the substance in the shoebox
was drugs and that he possessed them, Gondres-Medrano did not stipulate to those
elements and did not admit this at the suppression hearing. It was only after the
prosecution’s case that Gondres-Medrano admitted these facts. So without a stipulation,
the government had to prove each element. The video, as the court correctly found, was
therefore highly probative to the government’s case and to undermining Gondres-
Medrano’s defense. See J.A. 435 (explaining the closeness in time and nature of the video
19
made it relevant and probative to the drugs seized, knowledge, and intent). So the probative
value was not “substantially outweighed” by anything else, and the video’s probative value
was certainly not so plainly outweighed that the court abused its discretion in admitting it.
Hassan, 742 F.3d at 132. 9
The court then brought up the possibility of crafting a curative instruction but
stopped short of finding one necessary, instead suggesting that decision be made by
Gondres-Medrano at a later point in the trial. J.A. 435–36. The court never gave this
instruction. But the court made it clear that it was trying to decide when and whether to
provide any limiting instruction, and it put the onus on defense counsel to ask for the
instruction if counsel wanted it, since counsel may have changed his mind during trial. The
court never promised to give an instruction or make the video’s admission conditional on
giving that instruction. Instead, the court made it clear it would wait on defense counsel to
decide whether he wanted the limiting instruction, and counsel crossed on the issue but
never asked for an instruction. Although Gondres-Medrano never asked for the instruction,
he argues not giving one was a plain error. United States v. Marcus, 560 U.S. 258, 262
9
Gondres-Medrano relies on Hill, 322 F.3d 301, to argue that the district court
abused its discretion. There, a defendant accused of defrauding a retiree sought to
introduce a gift letter showing that the victim had previously promised to gift an associate
some money just to turn around and sue him for failing to pay a loan. Id. at 303. We found
that this evidence was properly excluded because what happened with the third-party
associate was disputed and figuring that out would require a “case within a case that would
have confused the jury as to the issues to be decided.” Id. at 306. Our case is different.
The disputed issue here is directly relevant in a way that the dispute in Hill, which happened
years prior and involved a third party not privy to the case, was not. So any risk of
confusion is substantially less. But even if this case were like Hill, Hill does not dictate
that evidence must be excluded when a trial within a trial is possible, as Hill was affirming
a district court’s discretionary choice to exclude the evidence.
20
(2010). We find no error, much less a plain one, in failing to provide a limiting instruction
to the properly admitted video. See United States v. Johnson, 945 F.3d 174, 178 (4th Cir.
2019) (finding no plain error in failing to give a limiting instruction required by statute). 10
C. Applying the sentencing enhancement was harmless
Gondres-Medrano finally argues that the court erred when it applied a two-level
sentencing enhancement to his guidelines range based on perjury under Federal Sentencing
Guideline § 3C1.1. It is not apparent that this was erroneous, but even if it was, we can
find any error harmless if we have “(1) ‘knowledge that the district court would have
reached the same result even if it had decided the guidelines issue the other way,’ and (2)
‘a determination that the sentence would be reasonable even if the guidelines issue had
been decided in the defendant’s favor.’” United States v. Savillon-Matute, 636 F.3d 119,
123 (4th Cir. 2011) (quoting United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006));
10
Gondres-Medrano relies heavily on the framework laid out in United States v.
Mitchell, 1 F.3d 235 (4th Cir. 1993), to argue that there was a plain error here. But that
case is inapposite. In Mitchell, we found plain error when the prosecution, during closing
arguments, repeatedly emphasized the defendant’s brother’s conviction for participating in
the same conspiracy the defendant was charged with and focused on the fact that the jury
in his brother’s case did not believe his brother’s testimony. Id. at 242–43. While evidence
of the conviction was admissible to impeach the brother’s testimony, it was not admissible
for the purpose the prosecutor used it for: to argue that because the brother had been
convicted, the defendant should also be convicted. Id. To determine whether it was plain
error not to stop the prosecutor from making the statements he made, we considered five
factors, one of which was whether a limiting instruction was given. Id. But this framework
is inapplicable here. In Mitchell, a limiting instruction was only one factor to consider in
determining whether “the prosecution’s conduct prejudiced the appellant’s substantial
rights,” one part of the plain-error inquiry. Id. at 242. But here the plain-error review
applies only to the failure to instruct the jury on how it could use the video, rather than the
decision to admit the video. And as explained above, the court had broad discretion to
admit the video for various purposes under Rule 403 and quite clearly did not commit a
reversible error in doing so.
21
see also United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017). Both requirements
are met here.
Gondres-Medrano admits that his 121-month sentence was substantively reasonable
and does not contest the harmlessness analysis. The district court explicitly said that it
would have given the same sentence without the enhancement, noting that it was only one
month above the statutory minimum. J.A. 468; see also 21 U.S.C. § 841(b)(1)(A)(vi). This
is enough to meet the first prong of the harmlessness analysis. See McDonald, 850 F.3d at
643–44. As for the second prong, Gondres-Medrano was given a sentence of 121 months,
the bottom of his 121-to-151-month guidelines range that included the § 3C1.1
enhancement. J.A. 150. Even without the enhancement, however, 121 months would be
within his guidelines range. See J.A. 445 (showing an offense level of 30 without the
enhancement); U.S.S.G. § 5A (setting a guidelines range of 97 to 121 months for an offense
level of 30 and criminal history category of I). And regardless, the statute under which he
was sentenced required a sentence of at least 120 months. 21 U.S.C. § 841(b)(1)(A)(vi).
So Gondres-Medrano’s sentence would have been substantively reasonable even if
applying the § 3C1.1 enhancement was improper. Thus, any error was harmless, and the
sentence must be affirmed.
* * *
Probable cause is an elusive and flexible concept. It may turn on a variety of
circumstances. One common source police rely on, and that has been the crux of multiple
Supreme Court cases, is the informant. Here, a known informant had a track record of
providing reliable information to law enforcement. And in the circumstances here, the
22
information he provided readily established probable cause, justifying the search.
Gondres-Medrano’s other claims also fail: The district court acted within its discretion in
admitting the video, and the application of the perjury enhancement was, at most, harmless
error. So we
AFFIRM.
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