United States v. Jason Bergin

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11218 JANUARY 12, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 2:09-cr-00075-JES-SPC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JASON BERGIN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 12, 2012)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Jason Bergin appeals his conviction for conspiracy to possess with intent to
distribute Oxycodone, Methadone, and Alprazolam. On appeal, Bergin argues that
his motion to suppress should have been granted because: (1) the magistrate and
district court clearly erred by crediting the testimony of Deputy Christopher Canfield
over that of co-defendant Robert Powner; and (2) the post-indictment and arrest
statements and testimony of his co-defendants were not sufficiently attenuated from
an illegal search. After thorough review, we affirm.1
“A district court’s ruling on a motion to suppress presents mixed questions of
law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.
2002). We review “findings of fact for clear error and the application of the law to
those facts de novo.” United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir.
2006). In reviewing the district court’s ruling, we construe the facts in the light most
favorable to the prevailing party below. United States v. Smith, 459 F.3d 1276, 1290
(11th Cir. 2006).
First, the district court did not clearly err in considering the testimony at the
motion to suppress hearing. Credibility determinations are within the province of the
fact finder “because the fact finder personally observes the testimony and is thus in
a better position than a reviewing court to assess the credibility of witnesses.”
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In addition, we GRANT Bergin’s motion to supplement the record.
2
Ramirez-Chilel, 289 F.3d at 749. Furthermore, if testimony presented by opposing
witnesses at the hearing is in “direct conflict,” the district court’s decision to lend
credence to one party’s version should be “conclusive” and warrants reversal only if
the court credits “exceedingly improbable” or unbelievable testimony. Id. (quotations
and emphasis omitted). Likewise, we “must accept the evidence unless it is contrary
to the laws of nature, or is so inconsistent or improbable on its face that no reasonable
factfinder could accept it.” Id. (quotation omitted).
On this record, the district court did not clearly err in crediting Deputy
Canfield’s testimony over co-defendant Powner’s testimony to determine that Bergin
permitted Canfield to enter the residence. Deputy Canfield, as well as Deputy Corey
Roberts both testified that Bergin was not allowed to re-enter his home to retrieve a
pair of socks and Bergin asked them to enter the home and retrieve his socks.
Powner’s testimony that he was asked to enter the home to retrieve the socks and that
he did in fact enter the home and shut the door behind him is in direct contradiction
to the officers’ testimony.
While neighbor April Campbell’s testimony -- that she observed officers enter
the house after Powner entered -- in part supports Powner’s testimony, it does not
make Deputy Canfield’s testimony unbelievable as a matter of law. Campbell was
unable to remember if Powner closed the door behind him when he entered the home.
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Additionally, she testified that she never observed the officers speaking to Bergin.
She also had no idea if anyone retrieved Bergin’s socks. Thus, it was within the
province of the magistrate, after observing each witness personally, to find Canfield
more credible than Powner. See Ramirez-Chilel, 289 F.3d at 749.
As for Bergin’s argument that it is illogical that a person in his position would
permit a police officer to enter his home, it is even more illogical on these facts that
a trained officer while making a felony arrest would allow a person to enter the
residence and close the door. Lastly, the fact that Canfield included incorrect
statements in his arrest report fails to make his overall testimony “exceedingly
improbable.” Canfield was extensively cross-examined about these statements and
explained to the magistrate judge why he made the assumptions.
We are also unpersuaded by Bergin’s claim that the post-indictment and arrest
statements and testimony of his co-defendants should have been suppressed due to
an illegal search. The Fourth Amendment provides that “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated.” U.S. Const. amend. IV. Generally, evidence
obtained by unconstitutional means is inadmissible because it is the “fruit of the
poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488 (1963). However,
such evidence is admissible if it has been obtained “by means sufficiently
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distinguishable to be purged of the primary taint.” Id. One such exception is the
attenuation doctrine. See United States v. Terzado-Madruga, 897 F.2d 1099, 1113
(11th Cir. 1990).
Where the connection between the unlawful conduct and the discovery of the
challenged evidence may be so attenuated as to dissipate the taint, the exclusionary
rule is rendered inapplicable. Etheridge v. United States, 380 F.2d 804, 808 (5th Cir.
1967).2 Whether the discovery of evidence is sufficiently attenuated is an issue that
“cannot be decided on the basis of causation in the logical sense alone, but
necessarily includes other elements as well.” United States v. Ceccolini, 435 U.S.
268, 274 (1978). When considering whether witness testimony is admissible, the
district court must consider “the degree of free will exercised by the witness” and
must balance “the social cost of exclusion that would perpetually disable a witness
from testifying about relevant and material facts against the efficacy of exclusion in
furthering the deterrent purpose of the exclusionary rule.” United States v. Brookins,
614 F.2d 1037, 1042 (5th Cir. 1980) (quotation and brackets omitted). Both the
voluntariness requirement and the greater social cost requirement are more readily
satisfied if the challenged derivative evidence is testimony, rather than physical
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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evidence. Id. The attenuation analysis need not apply, however, absent an initial
finding that there is at least some causal connection between the illegality and the
testimony. Terzado-Madruga, 897 F.2d at 1116. Illegally obtained evidence is not
excluded from presentation to a grand jury. United States v. Calandra, 414 U.S. 338,
351-52 (1974).
In this case, the record reflects that after being arrested on September 22 and
23, 2009, co-defendants Bergin, Powner, Shandy Albert, and Theresa Martinez all
made statements that implicated Bergin in the passing of fraudulent prescriptions.
Bergin is correct that knowledge of their identities and involvement in the conspiracy
can be traced back to evidence discovered during the unlawful searches of Bergin’s
home.
However, their statements and prospective testimony are attenuated from the
illegal searches. See Brookins, 614 F.2d at 1042. As the record reflects, the
statements made by Bergin, Powner, Albert, and Martinez were acts of their own free
will. Each person made the challenged statement almost two months after the illegal
search. The statements were all made after the co-defendants were indicted and
arrested for their own role in the conspiracy. Even though these statements were
made after being arrested, there is nothing to suggest that the statements were
coerced. Each individual was given their Miranda rights, but elected to waive those
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rights before speaking with Drug Enforcement Agent Amber Baginski and providing
information about the conspiracy. Given the length of time between the illegal
searches and the intervening indictments and arrests, the social cost of excluding such
evidence outweighs the deterrent effect because there is nothing in the record to
suggest that the exclusion of such evidence would have a deterrent effect on law
enforcement misconduct.
Bergin also argues that the statements of co-defendants Susan Hamilton, Julie
Becker, and Jarrett Sprafka should be suppressed as fruits of the illegal search. Each
of these statements were made after the searches, but prior to the indictment.
However, these statements and prospective testimony are also attenuated from the
illegal searches. See id. As the record shows, each of these individuals made
statements to the authorities of their own free will. While their names were
discovered during the illegal search pursuant to the search warrant, Hamilton and
Becker came to the attention of the police based on their independent arrests for
passing fraudulent prescriptions. After Hamilton was arrested, she called a detective
and requested to speak with him. After Becker was arrested, she elected to speak
with Agent Baginski after being given her Miranda rights. Sprafka voluntarily
contacted the police after learning he was on the pharmacy alert.
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Additionally, there is no evidence showing that Becker and Sprafka were even
aware of the illegal searches at the time they voluntarily spoke with the police. Given
the circumstances of Hamilton, Becker, and Sprafka’s statements, there is nothing in
the record to suggest that the exclusion of such evidence would have a deterrent
effect on law enforcement misconduct. Accordingly, we affirm.
AFFIRMED.
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