United States v. Jose Loera, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2324
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE J. L OERA, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 07 CR 25—Philip P. Simon, Judge.
A RGUED A PRIL 1, 2009—D ECIDED M AY 15, 2009
Before P OSNER, E VANS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. Jose Loera, Jr. was riding as a
passenger in an SUV when Indiana state police pulled it
over for a pair of traffic violations. This case, of course,
isn’t here because of traffic violations: the rig was packed
with cocaine, and the stop was just an excuse to make
a drug bust. Despite the precedent authorizing this
tactic, Whren v. United States, 517 U.S. 806 (1996), Loera
contends that the district court should have suppressed
the drug evidence. He also asks us to overturn his con-
2 No. 08-2324
viction for want of a speedy trial and, in the alternative, to
vacate his sentence for what he claims is a violation of
the rule announced in Apprendi v. New Jersey, 530 U.S.
466 (2000).
A road trip from Atlanta, Georgia, to Valparaiso, Indiana,
requires driving some 685 miles. That’s not too bad if
you have some company and a good radio. But it’s down-
right frightening if your “company” includes 21 kilos of
cocaine. That’s the position in which Loera found himself
when he sat down in the passenger seat of a Ford Explorer
on the night of December 13, 2004. The driver, a woman
named Angela Bennett, no doubt shared Loera’s fears.
But money is a pretty good anti-anxiety medication, so,
with the promise of a big payday upon delivery, they
hit the road.
Everything looked good for a while, but unbeknownst
to Bennett and Loera, the DEA had the case scooped.
With an undercover agent posing as the ultimate buyer
and an informant in on the planning, the DEA knew just
about everything, including the identity of the vehicle.
For whatever reason, though, the DEA wasn’t in a posi-
tion to intercept the rig on its own—which is where the
Indiana State Police came in. A DEA agent phoned Trooper
Jason Carmin on December 13 asking him if he could be
in the Lafayette area the next day for a “possible vehicle
stop.” The agent didn’t tell Carmin why he wanted the car
stopped—though a call from the DEA usually means
No. 08-2324 3
drugs 1 —but he described the vehicle and its driver, and
Carmin agreed to be on the lookout.
Carmin spotted the Explorer the next morning on I-65.
Another officer, Trooper Mark Bloom, was patrolling the
area with Carmin but had gone down the road a short
distance in his cruiser to stop a speeding car. As Bloom
was stopping the other vehicle, Carmin saw the Explorer
swerve into an exit lane and then quickly swerve back
into the main flow of traffic, all without using a turn
signal. Carmin immediately gave chase, but as the
Explorer passed by Bloom’s patrol car (now stopped on
the shoulder of the road) it failed to yield to Bloom’s
vehicle by switching to the left lane—traffic violation
number two. Carmin flipped on his lights, and the
Explorer came to heel.
The first thing Carmin noticed when he approached
the Explorer was Bennett’s extreme nervousness. Her
1
According to its Web site, the DEA’s mission
is to enforce the controlled substances laws and regulations
of the United States and bring to the criminal and civil
justice system of the United States, or any other competent
jurisdiction, those organizations and principal members
of organizations, involved in the growing, manufacture, or
distribution of controlled substances appearing in or
destined for illicit traffic in the United States; and to recom-
mend and support non-enforcement programs aimed at
reducing the availability of illicit controlled substances
on the domestic and international markets.
DEA Mission Statement at http://www.usdoj.gov/dea/agency/
mission.htm (last visited April 7, 2009).
4 No. 08-2324
hands were shaking so badly that Carmin wondered
whether she would even be able to retrieve her license
from her wallet. Carmin asked Bennett to step out of the
vehicle, and she complied. Alone with Bennett behind the
Explorer, Carmin explained why he pulled her over and
asked where she was driving. Bennett—still visibly ner-
vous—stated that she was driving back to Chicago from
Atlanta with her boyfriend (Loera). She said they drove
together to Atlanta to visit Loera’s sick father for a
couple of days. When Carmin left Bennett to question
Loera, however, he received a different story. Loera said
he was in Atlanta by himself for two weeks—not two
days—and that Bennett drove alone from Chicago to
pick him up. Though Carmin detected the inconsistencies,
he didn’t press Loera. Instead, he returned to Bennett,
told her she could wait in the Explorer, and walked back
to his cruiser. Given the totality of the circum-
stances—including the DEA call—Carmin radioed
Bloom and asked him to bring along his drug dog. In
the meantime, Carmin walked back to the Explorer
and handed Bennett a written warning for the minor
traffic violations. But if Bennett and Loera thought
they were off the hook, they were mistaken.
After taking three steps towards his cruiser, Carmin
turned on his heels, freezing Bennett in position as she
was reaching to put the truck in gear. Playing Columbo
to perfection, Carmin had “just one more thing.” Nothing
major, only a small matter of drugs—were they carrying
any? Bennett responded that they were not and agreed
to a search of the vehicle. That was the nail in the coffin.
Bloom showed up with his drug dog, which alerted to
No. 08-2324 5
the presence of cocaine in a hidden compartment built
into the floor of the rear cargo area. Carmin lifted the
trap door to reveal several packages, wrapped in black
duct tape, emanating an “overwhelmingly strong odor
of raw cocaine.” 2 Loera and Bennett were immediately
placed in handcuffs.
If the arrest was swift, however, it was offset by the
delay leading up to trial. Nearly two-and-a-half years
passed from the date Loera was apprehended (Decem-
ber 14, 2004) to the date his trial began (April 23, 2007).
(We bid adieu to Bennett at this point. Though she was
tried with Loera—and convicted—she has not appealed.)
There was little holdup in the beginning: Loera was
indicted in early May 2005, and the court scheduled trial
for September. Then the continuances—granted at the
request of both parties—started piling up. Coupled with
a slew of pretrial motions, the trial date was gradually
pushed further and further into the distance. Finally, on
December 4, 2006, the court dismissed the indictment
for a violation of the Speedy Trial Act, finding that it
had improperly excluded a five-month delay from the
calculation under 18 U.S.C. § 3161. But the dismissal was
2
Some of the packages had stickers warning “No Fumar,”
Spanish for “No Smoking.” That’s curious—powder cocaine is
normally snorted, not smoked—but perhaps this was some
kind of marketing strategy. Cocaine peddlers often brand
their products with logos (authorities have seen everything
from Nike “swooshes” to Teletubbies). If that’s what these
dealers had in mind, it gives no meaning to the expression
“mere puffery.”
6 No. 08-2324
without prejudice (over Loera’s objection), so a fresh
indictment was handed up on February 7, 2007. Things
went much quicker this time. The trial started just two-
and-a-half months later, well within the period set forth
in the Speedy Trial Act, 18 U.S.C. § 3161(c)(1). Still,
Loera says the overall delay was excessive.
Before trial, the parties clashed over the admissibility
of the drug evidence. Then, as now, Loera maintained that
the evidence should be suppressed for violation of the
Fourth Amendment. The court rejected this argument,
concluding that there was probable cause to effect the
stop; the officers’ subjective m otivations were
irrelevant; the questioning unrelated to the traffic viola-
tions did not unreasonably prolong the stop; and Bennett’s
consent to the search was valid (albeit unnecessary since
a dog sniff is not a “search” within the meaning of the
Fourth Amendment, United States v. Place, 462 U.S. 696,
706-07 (1983), and the canine’s alert provided probable
cause to search the SUV thereafter). With the drug and
other evidence in place, the jury found Loera guilty as
charged—guilty of conspiring to distribute cocaine and
of possessing five kilograms or more of cocaine with
the intent to distribute it, all in violation of 21 U.S.C.
§ 841(a)(1).
At sentencing, the court found that Loera had been
convicted of a felony drug offense in Illinois state court
in 2002, mandating a 20-year minimum custodial sentence
under 21 U.S.C. § 841(b). Loera argued that the prior
conviction should not be counted because the sur-
rounding facts (including whether he was represented
No. 08-2324 7
by counsel) were not submitted to the jury and proven
beyond a reasonable doubt. The court overruled
Loera’s objection and sentenced him to the enhanced
mandatory minimum of 20 years.
Loera renews on appeal the arguments he made in the
district court: The evidence should have been sup-
pressed; the court should have dismissed the first indict-
ment with prejudice and, at any rate, the overall delay
ran afoul of his constitutional right to a speedy trial; and
finally the court erred in enhancing his sentence for a
prior felony drug offense. We take these issues in order.
With its decision in Whren, the Supreme Court
“foreclose[d] any argument that the constitutional rea-
sonableness of traffic stops depends on the actual motiva-
tions of the individual officers involved.” 517 U.S. at 813;
see also United States v. Stribling, 94 F.3d 321, 323 (7th Cir.
1996). Nevertheless, Loera tries to distinguish Whren on
the grounds that in this case, unlike Whren, there was no
need for a pretext. Armed with the information it had
from its undercover agent and informant, the DEA could
have detained the vehicle itself. There was no need to
involve the state police who, lacking the DEA’s informa-
tion, first had to witness a traffic violation to effect the
stop. This supposed distinction is not only tortured, it
bears no meaning. If it is permissible to stop a vehicle for
a traffic violation where the ulterior motive of looking
for drugs is prompted by the occupants’ youth and pres-
ence in a “high drug area,” Whren, 517 U.S. at 808, certainly
it is permissible to do so when the impetus is a request
from a DEA agent of all people. For all intents and pur-
8 No. 08-2324
poses, Loera asks us to ignore Whren, not because it isn’t
on point, but because he disagrees with it. As well he
should; Whren dooms his argument, and we cannot
pretend otherwise. There was no violation of the
Fourth Amendment.3
Which brings us to the second issue—pretrial delay.
Here, Loera presents two related arguments: one
under the Speedy Trial Act and the other under the
Sixth Amendment. In both cases, we review legal con-
clusions de novo and factual findings for clear error.
United States v. Arceo, 535 F.3d 679, 684 (7th Cir. 2008);
United States v. King, 338 F.3d 794, 797 (7th Cir. 2003).
Loera first claims that the district court didn’t go far
enough in its dismissal of the original indictment under
the Speedy Trial Act. The court was in the right to
throw out the charges, yes, but it should have done so
3
Loera also suggests, in a roundabout way, that the search
was illegal because it was not authorized by a warrant. There
are two fundamental problems with this take. First, there is
the issue of consent. Bennett agreed to the search, and there is
no reason to suppose her consent was less than freely given.
See Davis v. Novy, 433 F.3d 926, 929 (7th Cir. 2006) (explaining
that voluntariness is judged by the totality of the circumstances).
Second, there is the automobile exception. An officer does
not need a warrant to search a vehicle so long as he has prob-
able cause to believe that it contains contraband or evidence
of a crime. United States v. Hines, 449 F.3d 808, 814 (7th Cir. 2006).
If Trooper Carmin didn’t have probable cause to believe he
would find drugs initially, he definitely did when Bloom’s
dog alerted to their presence.
No. 08-2324 9
with prejudice. However, when a violation of the Speedy
Trial Act has occurred—and neither party in this case
asks us to revisit the court’s finding on this score—the
district court has discretion to determine whether to
dismiss the indictment with or without prejudice. United
States v. Killingsworth, 507 F.3d 1087, 1090 (7th Cir. 2007);
United States v. Fountain, 840 F.2d 509, 512 (7th Cir. 1988).
In making this election, the court must consider “the
seriousness of the offense; the facts and circumstances
of the case which led to the dismissal; and the impact of
a reprosecution on the administration of this chapter
and on the administration of justice.” 18 U.S.C. § 3162(a)(2).
Loera concedes that the offense here was serious,
weighing in favor of dismissal without prejudice, but
he says the court failed to assess properly the parties’
relative fault and the burden dismissal would cause
him. We disagree. The district court accurately noted
that both parties requested continuances; Loera suffered
no significant prejudice; and there was nothing to
indicate bad faith on the part of the government. As
we explained in Killingsworth, 507 F.3d at 1091 (citing
United States v. Taylor, 487 U.S. 326, 342 (1988)), dismissal
without prejudice is appropriate in these circumstances.
It is a response commensurate with the magnitude of
the violation and facts of the case.
The analysis is somewhat different under the Sixth
Amendment. See United States v. White, 443 F.3d 582, 588
(7th Cir. 2006) (explaining that the constitutional and
statutory speedy trial rights “are related but distinct, so
that a violation of one may be found without a violation
of the other”). The constitutional right to a speedy trial
10 No. 08-2324
is “triggered by an arrest, indictment, or some other
official accusation.” Arceo, 535 F.3d at 684. Once the
right is triggered, a claimed violation is assessed by
considering “whether delay before trial was uncom-
monly long, whether the government or the criminal
defendant is more to blame for that delay, whether, in
due course, the defendant asserted his right to a speedy
trial, and whether he suffered prejudice as the delay’s
result.” Doggett v. United States, 505 U.S. 647, 651 (1992).
The first factor—the length of the delay—is not so much
a factor as it is a threshold requirement: “without a
delay that is presumptively prejudicial, we need not
examine the other factors.” White, 443 F.3d at 589. Delay
approaching one year is presumptively prejudicial. Id.For Loera, this first hurdle is insurmountable. He
admits that the delay between the second indictment
and trial—a mere two-and-a-half months—falls far short.
Yet, he says we should also consider the delay
associated with the first indictment. We cannot do that.
“The Speedy Trial Clause applies only to an accused,”
United States v. Samples, 713 F.2d 298, 301 (7th Cir. 1983), so
when the first indictment was dismissed, Loera was
“legally and constitutionally in the same posture as
though no charges had been made,” United States v.
MacDonald, 456 U.S. 1, 10 (1982). The delay following the
second indictment must be measured independently, and
from that perspective it fails. And to the extent Loera
would have us find a constitutional violation on the
delay after the first indictment alone, the time to make
that argument was then, not now. As the district court
noted, even though Loera mentioned the Sixth Amend-
No. 08-2324 11
ment in his motion to dismiss, his argument revolved
entirely around the Speedy Trial Act. In his eight-page
supporting memorandum, Loera never uttered a word
about the Constitution. By failing to develop the con-
stitutional issue in the context of the earlier case, Loera
waived it. United States v. Kumpf, 438 F.3d 785, 791 (7th
Cir. 2006).
Loera’s final argument—that his rights under Apprendi
were violated because the fact of his prior conviction was
not presented to the jury and proved beyond a reasonable
doubt—is a nonstarter. Because we are powerless to
overrule Almendarez-Torres v. United States, 523 U.S. 224(1998), a decision left intact by Apprendi, we must reject
Loera’s argument on this point.
The judgment of the district court is A FFIRMED.
5-15-09