United States v. Gomez ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50674
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER GOMEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
(EP-00-CR-745-1-DB)
--------------------
March 17, 2003
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Javier Gomez appeals his convictions for
conspiracy, possession with intent to distribute marijuana, and
maintaining a place for the purposes of conspiring to possess with
intent to distribute and possession with intent to distribute
marijuana, in violation of 21 U.S.C. §§ 841, 846, and 856. In a
prior opinion, we concluded that Gomez had standing to challenge
the search of a rental truck parked in his driveway by an
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
accomplice.1 On remand, the district court again denied Gomez’s
motion to suppress evidence seized from this truck because one of
his accomplices voluntarily consented to the search. The district
court reinstated Gomez’s conviction and sentence, and this appeal
followed.
The government must establish voluntary consent by a
preponderance of the evidence. As determination of voluntariness
is a factual finding, we review it for clear error.2
Voluntariness is evaluated using six factors: (1) custodial status;
(2) the presence of coercive police procedures; (3) the extent and
level of cooperation with the officers; (4) the awareness of the
right to refuse consent; (5) education and intelligence; and (6)
the belief that no incriminating evidence will be found.3 No
single factor is dispositive.4
The gravamen of Gomez’s insistence that his accomplice did not
voluntarily consent to the search of the truck is (1) the
accomplice was approached by a police officer in Gomez’s back yard,
and (2) the officer did not explicitly inform the accomplice of his
right to refuse the officer’s request to search the truck. Thus,
1
See United States v. Gomez, 276 F.3d 694 (5th Cir. 2001).
2
See United States v. Gonzales, 79 F.3d 413, 421 (5th Cir.
1996).
3
See United States v. Jones, 234 F.3d 234, 242 (5th Cir.
2000).
4
Id.2
Gomez contends, the accomplice felt “detained,” and the brief
exchange between the police officer and the accomplice reflected an
“extremely coercive environment.”
Our review of the testimony at Gomez’s suppression hearing on
remand persuades us that the district court’s finding of voluntary
consent is not clearly erroneous. The lone police officer did not
make any threats, display any force, or use any coercive tactics in
his interaction with the accomplice.5 The district court found the
accomplice to be educated and intelligent, and noted that he
cooperated with the police, as, for example, by unlocking and
opening the truck for them. Furthermore, the accomplice was not in
custody,6 and he testified at the suppression hearing that he did
not feel as though he were in custody. Although the police did not
explicitly inform the accomplice of his right to refuse the search
request, this is not indispensable to voluntariness;7 neither is
the government specifically required to show that a defendant knew
5
United States v. Tompkins, 130 F.3d 117, 121-2 (5th Cir.
1997) (affirming a finding of voluntariness given similar
circumstances in which the police neither made any overt display of
authority nor used threats or violence).
6
United States v. Solis, 299 F.3d 420, 437-38 (5th Cir. 2002)
(affirming a finding of voluntariness in request to search a
suspect’s home when the suspect was not in custody and there was no
display of force by the police “beyond their presence in numbers”).
7
See id. at 438 (affirming finding of voluntariness, although
police “never advised [the suspect] that he had the right to refuse
consent to search” his house).
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of his right to refuse.8 In our review of the totality of the
circumstances, we do not perceive the presence of any clear error
in the district court’s finding of voluntariness.
As the district court found that the search of Gomez’s
residence, including the exterior area where officers encountered
his accomplice, was unconstitutional, Gomez briefly suggests that
(1) the testimony of one accomplice, (2) the accomplice’s keys to
the truck, and (3) the truck’s contents are all “fruit of the
poisonous tree” under Wong Sun v. United States.9 But, because
Gomez did not raise this issue below, we review it for “plain
error” only. Gomez’s argument on this point involves factual
issues that could have been determined by the district court. We
conclude that the error, if any, was not “plain.”10
Although we previously decided the issue against him, Gomez
again asserts that the introduction of post-arrest statements of
non-testifying accomplices was a violation of his Sixth Amendment
right to confront adverse witnesses, relying on Bruton v. United
States.11 We previously concluded that, as Gomez was tried
8
United States v. Hernandez, 279 F.3d 302, 308 (5th Cir.
2002) (recognizing that “the government is not required to show
that the defendant was aware of her right of refusal”).
9
371 U.S. 471 (1963).
10
See Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th
Cir. 1995) (issues raised for first time on appeal involving
factual determinations that could have been resolved below
generally do not rise to level of plain error).
11
391 U.S. 123 (1968).
4
separately from these accomplices, he cannot show a Bruton
violation.12 Under the “law of the case” doctrine, we generally
will follow our prior ruling in the same case, and will not
reexamine issues of law. There is, however, an exception when the
prior decision was clearly erroneous or its application would work
a manifest injustice.13 Relying on Lilly v. Virginia,14 Gomez
asserts that our jurisprudence has been overruled, and that the
prior opinion was clearly erroneous. We disagree.
The Supreme Court in Lilly did not expressly overrule our
decisions in Briscoe or Restrepo; neither have we ruled that Lilly
implicitly overruled those decisions. Furthermore, both Lilly and
Bruton are distinguishable from the present case. In Bruton, a
joint trial made it impossible to “confront” a co-defendant
regarding his prior statement, because under the Fifth Amendment,
he could not be made to testify. And, although the defendant in
Lilly was tried separately, he could not confront his accomplice
regarding the accomplice’s prior statement because the accomplice
had invoked the Fifth Amendment when called to the stand. Unlike
the defendant in Bruton, Gomez was not tried jointly with his
accomplice, and, unlike the defendant in Lilly, Gomez was tried
12
Gomez, 276 F.3d at 698-99 (citing United States v. Restrepo,
994 F.2d 173, 186 (5th Cir. 1993) (requiring joint trial)); United
States v. Briscoe, 742 F.2d 842, 847 (5th Cir. 1984) (same)).
13
See United States v. Becerra, 155 F.3d 740, 752-53 (5th Cir.
1998).
14
527 U.S. 116 (1999).
5
after his accomplice had pleaded guilty, thereby mooting the
accomplice’s Fifth Amendment right against self-incrimination.
Consequently, either Gomez or the government could have called the
accomplice to testify regarding his statement, thereby allowing
Gomez to exercise his confrontation rights. Gomez’s failure to do
so constitutes waiver. Under these circumstances, our prior
holding on Gomez’s Bruton claim was not clearly erroneous, and thus
remains the law of the case.
The judgment of the district court is
AFFIRMED.
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