United States v. Emmanuel Rodriguez ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3267
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Emmanuel Rodriguez, *
*
Appellant. *
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Submitted: February 12, 2007
Filed: May 7, 2007
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Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
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RILEY, Circuit Judge.
Following Emmanuel Rodriguez’s (Rodriguez) conviction for conspiracy to
distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846, the district court1 sentenced Rodriguez to 360
months’ imprisonment and 5 years’ supervised release. Rodriguez appeals. We
affirm.
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
I. BACKGROUND
Rodriguez and his brother, Yone Rodriguez (Yone), were the focus of a three-
year collaborative investigation among several law enforcement agencies based on
intelligence indicating the brothers led a methamphetamine distribution conspiracy in
southwest Missouri. Authorities arrested Rodriguez on December 16, 2003, upon his
arrival at the Tulsa, Oklahoma, airport to pick up Jacquelyn Witt (Witt), a courier who
transported methamphetamine for the conspiracy. Witt was cooperating with law
enforcement after having been arrested earlier that day at the same location in
possession of approximately one kilogram of methamphetamine.
Based on information provided by Witt, a reliable confidential informant (CI),
and other conspiracy members, as well as from intelligence reports concerning
Rodriguez and Yone, Jasper County (Missouri) Drug Task Force Detective Randee
Kaiser (Detective Kaiser) applied for a search warrant for a residence believed to be
owned and occupied by Rodriguez and Yone. The warrant, issued and executed on
December 16, 2003, authorized a search of property located at 5165 County Lane 50
in Reeds, Jasper County, Missouri (Reeds residence). Upon executing the search
warrant, officers found numerous documents bearing the names of Rodriguez and
Yone, three firearms, ammunition, digital scales, and other items associated with
distribution of controlled substances.
On December 19, 2003, Detective Frank Lundien (Detective Lundien),
supervisor of the Jasper County Drug Task Force, applied for a second search warrant
for property located at 3411 South Pearl Street in Joplin, Newton County, Missouri
(Joplin residence), which officers believed to be owned by Rodriguez and Lisa
Bateman (Bateman), Rodriguez’s girlfriend. As the agent responsible for coordinating
the investigation of Rodriguez and Yone, Detective Kaiser knew the facts contained
in Detective Lundien’s affidavit and search warrant application and discussed those
facts with other members of the Jasper County Drug Task Force before execution of
the warrant. A search of the Joplin residence on December 19 revealed several
receipts for purchases and wire transfers by Rodriguez; a bond receipt dated
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December 17, 2003, showing a cash payment in the amount of $3,100 from Bateman;
and over $5,000 in cash.
Rodriguez was indicted for conspiring to distribute more than 500 grams of
methamphetamine. Before trial, Rodriguez moved to suppress evidence seized during
the execution of the two search warrants. The district court2 denied Rodriguez’s
motions to suppress. The case proceeded to trial. Over Rodriguez’s objections, the
district court allowed the government to introduce evidence of Rodriguez’s
unexplained wealth3 and testimony from a law enforcement officer regarding
statements made by Witt during her telephone conversation with Rodriguez. The jury
convicted Rodriguez of the conspiracy charge.
Rodriguez’s presentence investigation report (PSR) recommended (1) a base
offense level of 36 because the offense involved at least five kilograms but less than
fifteen kilograms of methamphetamine, see U.S.S.G. § 2D1.1(c)(2); (2) a two-level
enhancement for possession of a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1); and
(3) a four-level enhancement for Rodriguez’s role in the offense as an organizer or
leader, see U.S.S.G. § 3B1.1(a). Based on an adjusted offense level of 42 and a
criminal history category I, the PSR calculated an advisory Guidelines range of 360
months’ to life imprisonment. Rodriguez objected to the PSR’s drug quantity
determination and to both sentencing enhancements. The district court overruled
Rodriguez’s objections, sentencing Rodriguez to 360 months’ imprisonment and 5
years’ supervised release.
2
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable James
C. England, United States Magistrate Judge for the Western District of Missouri.
3
The district court admitted, over Rodriguez’s objection, receipts detailing a
$3,200 tire purchase and a $430 security system purchase for Rodriguez’s Lincoln
Navigator, five Western Union receipts for wire transfers by Rodriguez totaling
$4,676, and the bond receipt evidencing payment by Bateman in the amount of
$3,100.
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Rodriguez appeals, challenging (1) the denial of his suppression motions,
(2) the admission of evidence regarding his unexplained wealth, (3) the admission of
Witt’s statements through the testimony of an officer, and (4) the district court’s drug
quantity determination and sentencing enhancements.
II. DISCUSSION
A. Denial of Motions to Suppress
Rodriguez contends the district court erred in failing to suppress the evidence
seized during searches of the Reeds residence and the Joplin residence because neither
search warrant was supported by probable cause. Ordinarily, when reviewing a
district court’s denial of a suppression motion, we review for clear error the court’s
factual findings and review de novo whether the Fourth Amendment was violated.
United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007). However, Rodriguez did not
file timely objections to the magistrate judge’s report and recommendation denying
Rodriguez’s motions to suppress. See 28 U.S.C. § 636(b)(1). Rodriguez’s “failure
to file any objections waived his right to de novo review by the district court of any
portion of the report and recommendation of the magistrate judge as well as his right
to appeal from the findings of fact contained therein.” United States v. Newton, 259
F.3d 964, 966 (8th Cir. 2001) (quoting Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir.
1994)). Thus, “we review the court’s factual determinations for plain error.” United
States v. Brooks, 285 F.3d 1102, 1105 (8th Cir. 2002).
In reviewing the denial of a suppression motion, “we may consider the
applicability of the good-faith exception to the exclusionary rule before reviewing the
existence of probable cause,” because engaging in a probable cause determination is
unnecessary if the officers acted in good-faith reliance on a warrant. United States v.
Warford, 439 F.3d 836, 841 (8th Cir. 2006). “Where a search is conducted pursuant
to a warrant, the good faith exception . . . applies, and evidence should not be
suppressed due to an absence of probable cause unless the warrant was based on an
affidavit ‘so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.’” Id. (quoting United States v. Leon, 468 U.S. 897,
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923 (1984)). The officers’ reliance on the warrant must be objectively reasonable.
Leon, 468 U.S. at 919. When assessing the good faith of the officers, we look to the
totality of the circumstances, including any information known to the officers, but not
included in the affidavit. United States v. Chambers, 987 F.2d 1331, 1335 (8th Cir.
1993).
With regard to the Reeds residence search warrant, the affidavit was not based
on an anonymous tip. Rather, a CI advised Detective Kaiser that Witt was going to
California to pick up a large quantity of methamphetamine for Rodriguez and Yone.
Previous information indicated Witt typically stayed in California for one to two days
before returning home. Officers confirmed Witt paid cash for a one-way airline ticket
and flew to California on December 15, 2003. Detective Kaiser also learned Witt
would be flying back from California to Tulsa. Following Witt’s arrest on December
16 at the Tulsa airport, Witt corroborated the CI’s allegations that Witt flew to
California with Yone on December 15, where Yone carried $12,000 cash, purchased
methamphetamine, and gave Witt methamphetamine to transport.4 Witt also stated
Rodriguez and Yone lived at 5165 County Lane 50 in Reeds, Missouri. According to
Witt, she had been at the Reeds residence on December 15, and observed Rodriguez
sell two ounces of methamphetamine to another individual. Witt further observed
numerous guns, a large quantity of methamphetamine, and thousands of dollars in
cash inside the Reeds residence. Detective Kaiser included all this information in the
application for the search warrant.
In addition to the information set forth in the affidavit, Detective Kaiser
testified at the suppression hearing that at the time he applied for the search warrant,
he was aware of the following: (1) three separate sources reported Rodriguez and
Yone had a trailer house in Reeds and used the residence in connection with their
drug-trafficking activities; (2) officers confirmed the address and location of the
4
At the suppression hearing, Detective Kaiser testified he received several
pieces of information before Witt’s arrest on December 16 indicating Witt was
transporting methamphetamine from California for Rodriguez.
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Reeds residence by following a map prepared by Witt and by conducting their own
independent investigation; (3) Juan Gonzalez, whose real name is Galdino Gallegos
(Gallegos), had been arrested at the Tulsa airport on December 16, 2003, and
implicated Rodriguez as having directed Gallegos to pick up Witt at the airport;
(4) Witt cooperated with law enforcement following her arrest and placed a controlled
telephone call to Rodriguez, resulting in Rodriguez coming to the Tulsa airport; and
(5) Rodriguez and Yone had been the focus of a three-year investigation by the Jasper
County Drug Task Force and other law enforcement agencies, resulting in numerous
reports regarding Rodriguez’s and Yone’s methamphetamine distribution activities.
Considering the totality of the circumstances, we conclude it was objectively
reasonable for the officers to rely on the validity of the search warrant for the Reeds
residence, and the Leon exception applies. See Leon, 468 U.S. at 922-23.
With regard to the search warrant for the Joplin residence, Rodriguez asserts no
reasonable law enforcement officer would have relied on the search warrant based
upon the affidavit submitted in support of the search warrant. We disagree. The
affidavit recounted the events occurring three days earlier, including Witt’s arrest at
the Tulsa airport, Witt’s observations of drug-trafficking activity at the Reeds
residence, and Rodriguez’s written statement to law enforcement following his arrest.
According to the affidavit, Witt informed officers Rodriguez’s girlfriend, Bateman,
lived near 34th Street in Joplin, Bateman’s brother advised officers that his sister
dated Rodriguez, surveillance conducted on the Joplin residence observed Rodriguez
coming and going from the location, and further investigation revealed Bateman paid
the waste water bill for the residence. Additionally, the affidavit discussed evidence
retrieved from a garbage collection search outside the residence during the early
morning hours of December 19–the same day the warrant was executed–indicating the
presence of methamphetamine, items consistent with methamphetamine distribution,
and discarded mail addressed to Bateman.
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The officers’ good-faith reliance on the validity of the Joplin residence search
warrant was further bolstered, not diminished, by additional facts known to the
officers, but not included within the affidavit, including (1) Rodriguez’s written
statement to law enforcement following the December 16 Reeds residence search, and
(2) information Bateman and Rodriguez lived at the Joplin residence with their minor
child. As noted previously, the officers were intimately familiar with the affidavit’s
facts as well as other information stemming from the extensive, three-year
investigation of Rodriguez. Given the officers’ knowledge at the time the Joplin
residence’s search warrant was executed, the officers’ reliance on the search warrant’s
validity was objectively reasonable.
The Leon good faith exception applies. See Leon, 468 U.S. at 922-23. We
therefore affirm the district court’s denial of Rodriguez’s motions to suppress.
B. Admission of Evidence of Unexplained Wealth
Rodriguez contends the district court erred in admitting evidence of
Rodriguez’s unexplained wealth in the absence of evidence showing a lack of other
legitimate sources of income. Reviewing the district court’s evidentiary ruling for an
abuse of discretion, see United States v. Claybourne, 415 F.3d 790, 797 (8th Cir.
2005) (standard of review), we find none. Unexplained evidence of wealth
subsequent to the commission of a crime is relevant and generally admissible in the
district court’s discretion, even in the absence of direct proof of a defendant’s prior
impecuniousness. United States v. Goldenstein, 456 F.2d 1006, 1011 (8th Cir. 1972);
see, e.g., United States v. Pensinger, 549 F.2d 1150, 1152 (8th Cir. 1977), cited with
approval in United States v. Hankins, 931 F.2d 1256, 1259 (8th Cir. 1991).
Furthermore, even assuming for the sake of argument evidence of impecuniousness
or poverty is a foundational prerequisite to admitting evidence of unexplained wealth,
the government satisfied this requirement by presenting testimony from one of its
witnesses that it was a “hassle” for Rodriguez to distribute drugs while at work, thus
Rodriguez quit his job in order to distribute drugs from his house or other locations.
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C. Admission of Officer Chris Claramunt’s Testimony
Rodriguez argues his Sixth Amendment right to confront witnesses against him
was violated by the admission of testimony from Officer Chris Claramunt (Officer
Claramunt), a narcotics detective with the Tulsa Police Department and a task force
officer with the Drug Enforcement Administration, regarding Witt’s telephonic
statements to Rodriguez. While cooperating with law enforcement, Witt placed a
recorded telephone call to Rodriguez in the presence of Officer Claramunt and another
officer. Witt testified at trial that during the call, she told Rodriguez “the dope was
smaller” and asked whether she would “still get paid the same amount.” According
to Witt, Rodriguez responded affirmatively and agreed to pick Witt up at the airport.5
At trial, Officer Claramunt summarized Witt’s statements to Rodriguez by testifying,
“Basically that [Witt] had arrived at the airport and her ride wasn’t there and [she
stated] I need a ride. I’m nervous. I’ve got 2 pounds of meth on me. You
[Rodriguez] need to come get me.” At the end of the government’s direct examination
of Officer Claramunt, counsel for Rodriguez objected, arguing the testimony
constituted inadmissible hearsay. The district court overruled the objection, holding
the testimony was admissible to show Rodriguez’s state of mind and to place into
context Rodriguez’s follow-up statement agreeing to come to the airport.
Because Rodriguez did not raise a Confrontation Clause objection to this
testimony at trial, we review his claim for plain error. See, e.g., United States v.
Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005); United States v. Pirani, 406 F.3d 543,
550 (8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005) (setting forth plain error
standard of review). In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the
Supreme Court held the Confrontation Clause bars the “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to testify,
and the defendant had a prior opportunity for cross-examination.” Regardless whether
Witt’s statements to Officer Claramunt were “testimonial,” they do not implicate
5
The testimony of Tulsa Police Department Officer Annette Williams, who was
present with Officer Claramunt during Witt’s conversation with Rodriguez,
corroborated Witt’s testimony on this topic.
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Rodriguez’s right to confrontation. Officer Claramunt’s testimony recounting Witt’s
telephonic statements was admitted to show Rodriguez’s state of mind and to place
Rodriguez’s statement into context, that is, what caused Rodriguez to arrive at the
airport, and the testimony was not offered or admitted to prove the truth of the matter
asserted. The testimony did not violate Rodriguez’s rights under the Confrontation
Clause. See id. at 60 n.9 (“The [Confrontation] Clause . . . does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” (citing Tennessee v. Street, 471 U.S. 409, 414 (1985) (holding “[t]he
nonhearsay aspect of [the testimony] . . . raises no Confrontation Clause concerns.”)));
see, e.g., United States v. Faulkner, 439 F.3d 1221, 1225-26 (10th Cir. 2006) (noting
the Supreme Court’s decision in Crawford makes clear “the [Confrontation] Clause
has no role unless the challenged out-of-court statement is offered for the truth of the
matter asserted in the statement”).
Furthermore, Witt testified at trial and was subject to cross-examination by
Rodriguez, thereby satisfying Rodriguez’s right to confront witnesses against him.
See Crawford, 541 U.S. at 60 n.9 (“[W]hen the declarant appears for cross-
examination at trial, the Confrontation Clause places no constraints at all on the use
of [the declarant’s] prior testimonial statements”). Although Witt’s testimony differed
slightly from Officer Claramunt’s, Rodriguez was entitled to argue those
inconsistencies to the jury, and such inconsistencies go to the weight of the evidence,
not its admissibility. Consequently, Rodriguez’s Confrontation Clause challenge
lacks merit.
D. Sentencing Issues
Finally, Rodriguez challenges the district court’s drug quantity determination
and sentencing enhancements. We review de novo the district court’s application of
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the Sentencing Guidelines and review for clear error its factual findings.6 United
States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005).
1. Drug Quantity Determination
“In order to attribute a quantity of drugs to a defendant, the sentencing court is
required to find by a preponderance of the evidence that the activity involving those
drugs was in furtherance of the conspiracy and either known to that defendant or
reasonably foreseeable to him.” United States v. Morin, 437 F.3d 777, 782 (8th Cir.
2006) (quoting United States v. Mickelson, 378 F.3d 810, 822 (8th Cir. 2004)). In a
drug conspiracy case, “the district court may consider amounts from drug transactions
in which the defendant was not directly involved if those dealings were part of the
same course of conduct or scheme.” Id.In this case, sufficient evidence supports the district court’s determination that
Rodriguez was involved in a conspiracy and Rodriguez knew, or it was reasonably
foreseeable to him, the conspiracy involved at least five kilograms, but less than
fifteen kilograms of methamphetamine. Witt testified she and another individual
routinely transported methamphetamine from California; Atlanta, Georgia; and Texas.
Flight records indicated Witt, Yone, and another individual made more than ten trips
to these locations in 2002 and 2003. Witt also testified she brought back
approximately one kilogram on each trip. Such testimony is borne out by Witt’s arrest
on December 16, 2003, while in possession of approximately one kilogram of
6
Rodriguez argues the district court erred in rendering its sentencing
determinations by using a preponderance of the evidence standard, asserting the
Supreme Court ultimately will determine a defendant’s culpability must be established
by clear and convincing evidence instead of by the preponderance standard. Under
the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005),
judicial fact-finding based on a preponderance of the evidence standard is permitted,
so long as the Guidelines are applied in an advisory manner. See United States v.
Thorpe, 447 F.3d 565, 569 (8th Cir. 2006). Because the district court so applied the
advisory Guidelines, we reject Rodriguez’s invitation to remand this case for
resentencing under a stricter burden of proof.
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methamphetamine after returning from California. The record also contains testimony
from several co-conspirators corroborating the amount of methamphetamine involved
in the conspiracy. Thus, the district court did not clearly err in calculating the drug
quantity attributable to Rodriguez and setting Rodriguez’s base offense level at 36.
2. Aggravated Role Enhancement
Section 3B1.1(a) of the Sentencing Guidelines authorizes a four-level
enhancement “[i]f the defendant was an organizer or a leader of a criminal activity.”
In determining whether to impose the enhancement, a sentencing court should
consider the defendant’s
exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and scope
of the illegal activity, and the degree of control and authority exercised
over others.
U.S.S.G. § 3B1.1 cmt. n.4.
Considering these factors, we find sufficient evidence to support Rodriguez’s
role enhancement. At trial, Witt testified Rodriguez provided $20,000 to $60,000 cash
for the drug-buying trips, each time giving Witt money for her airline ticket and for
the actual drug purchase. Rodriguez also coordinated Witt’s transportation to and
from the airport, paid Witt for delivering drugs to him after each trip, and once paid
Witt’s $494 cab fare when no one picked Witt up from the airport. Rodriguez also
instructed Witt about what to do when Yone was detained at a California airport.
Additionally, cooperating witness Sharon Robbins (Robbins) described
Rodriguez as “the top dog,” and testified that in September 2003, Rodriguez arrived
with a gun to enforce a drug deal gone awry and to discern the location of his money
and drugs. Gallegos, another cooperating witness, testified Rodriguez received the
cash for drug sales, even when others conducted transactions for him. Gallegos
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described Yone’s and Rodriguez’s joint leadership positions, testifying Yone “was in
charge of getting the dope,” and Rodriguez “was in charge of selling it.” Cooperating
witness David Reyes corroborated this testimony by describing Rodriguez’s role as
picking up drug deliveries from the airport, weighing the drugs and distributing them
to others, and making sure Rodriguez received the money. Such testimony
demonstrates Rodriguez exercised considerable decision-making authority and
participated extensively in planning and organizing the drug conspiracy’s activity and
the actions of its members.
Rodriguez argues the conspiracy’s true leader was Yone, and that Rodriguez,
like everyone else, took orders from Yone. Rodriguez’s characterization of his and
Yone’s respective roles is unconvincing. Furthermore, for purposes of § 3B1.1(a), the
defendant need not be the sole organizer or leader of a criminal organization; rather,
there can be more than one organizer or leader. United States v. Zimmer, 299 F.3d
710, 719 (8th Cir. 2002); see, e.g., United States v. Placensia, 352 F.3d 1157, 1166
(8th Cir. 2003). Based on the record before us, even if Yone also was an organizer or
leader, the district court did not clearly err in applying the four-level enhancement for
Rodriguez’s role in the drug conspiracy.
3. Weapon Enhancement
Section 2D1.1(b)(1) of the Sentencing Guidelines authorizes a two-level
enhancement if the defendant possessed a dangerous weapon, including a firearm, in
connection with a drug offense “unless it is clearly improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.3; see, e.g., Morin, 437 F.3d
at 781. At trial, the government presented evidence Rodriguez (1) arrived armed at
another individual’s residence to enforce a drug deal, (2) possessed firearms at various
drug distribution locations, (3) asked others to bring guns to trade for drugs, and (4)
told others he wanted guns to protect his drug operation. Officers also seized three
firearms and several rounds of ammunition from the Reeds residence during the
December 16, 2003, search. Given this evidence, the district court did not clearly err
in imposing the two-level weapon enhancement.
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III. CONCLUSION
For these reasons, we affirm Rodriguez’s conviction and sentence.
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