Document Info

DocketNumber: 11-11429

Citation Numbers: 452 F. App'x 883

Judges: Barkett, Wilson, Anderson

Filed Date: 1/6/2012

Status: Non-Precedential

Modified Date: 11/5/2024

  •                                                                      [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________               FILED
    U.S. COURT OF APPEALS
    No. 11-11429           ELEVENTH CIRCUIT
    JAN 6, 2012
    Non-Argument Calendar
    JOHN LEY
    ________________________            CLERK
    D.C. Docket No. 1:10-cr-20009-UU-2
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                              Plaintiff - Appellee,
    versus
    LUIS ENRIQUEZ LORENZO RODRIGUEZ,
    llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (January 6, 2012)
    Before BARKETT, WILSON, and ANDERSON, Circuit Judges.
    PER CURIAM:
    Luis Enriquez Lorenzo Rodriguez appeals his convictions for possession
    and conspiracy to possess with intent to distribute a controlled substance, in
    violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; conspiracy and attempt to
    obstruct, delay, and affect commerce by means of robbery, in violation of the
    Hobbs Act, 18 U.S.C. § 1951(a); and possession and discharge of a firearm in
    furtherance of a crime of violence and a drug-trafficking crime, in violation of 18
    U.S.C. §§ 924(c)(1)(A)(i), (c)(1)(A)(iii), and 2. On appeal, Lorenzo Rodriguez
    argues that the district court erred in denying his motion for judgment of acquittal
    on the Hobbs Act charges due to insufficient proof of a substantial effect on
    interstate commerce. He also challenges the district court’s admission of a
    witness’s pretrial photographic identification and her in-court testimony related to
    the identification. Next, the Lorenzo Rodriguez alleges that the district court
    improperly admitted highly prejudicial propensity evidence of his involvement in
    previous home-invasion robberies. Fourth, he states that the district court erred by
    admitting a detective’s testimony about the location from which various cell phone
    calls originated. Fifth, Lorenzo Rodriguez argues that the government violated
    Brady v. Maryland, 
    373 U.S. 83
    , 87, 
    83 S. Ct. 1194
    , 1196 (1963), by failing to
    fully disclose reports and notes containing police and witness statements. Finally,
    2
    Lorenzo Rodriguez argues that cumulative error deprived him of a fair trial. After
    thoroughly reviewing the record, we affirm the district court.
    I.
    We review de novo the denial of a motion for judgment of acquittal viewing
    the evidence in the light most favorable to the verdict. United States v. Thompson,
    
    473 F.3d 1137
    , 1142 (11th Cir. 2006). In reviewing the sufficiency of the
    evidence, “the issue is not whether a jury reasonably could have acquitted but
    whether it reasonably could have found guilt beyond a reasonable doubt.” 
    Id. “The Hobbs
    Act prohibits robbery or extortion, and attempts or conspiracies
    to commit robbery or extortion, that in any way or degree obstruct, delay, or affect
    commerce or the movement of any article or commodity in commerce.” United
    States v. Diaz, 
    248 F.3d 1065
    , 1084 (11th Cir. 2001) (quotation omitted).
    “Because the Hobbs Act, by its own terms, encompasses the inchoate offenses of
    attempt and conspiracy, the interstate nexus required to prove a Hobbs Act
    conspiracy may be established upon evidence that had the conspiratorial objective
    been accomplished, interstate commerce would have been affected.” United States
    v. Orisnord, 
    483 F.3d 1169
    , 1177 (11th Cir. 2007). Thus, to establish the requisite
    interstate nexus for conspiracy to commit Hobbs Act robbery, the government
    need only demonstrate a realistic probability of an effect on interstate commerce or
    3
    some actual de minimis effect. United States v. Kaplan, 
    171 F.3d 1351
    , 1354
    (11th Cir. 1999).
    Lorenzo Rodriguez argues the Government needed to prove that there was a
    substantial relation to interstate commerce and not a minimal nexus. However, the
    current law in this circuit is, and remains, that only a minimal nexus is required.
    See, e.g., United States v. Taylor, 
    480 F.3d 1025
    , 1027 (11th Cir. 2007). Here,
    Lorenzo Rodriguez and his codefendants planned and carried out an armed
    robbery with the hope of stealing money and drugs. The Government’s case
    included testimony that most drugs come from outside the United States.
    Therefore, the district court properly denied Lorenzo Rodriguez’s motion for
    judgment of acquittal on the two counts for conspiracy and attempt to commit
    Hobbs Act robbery because a juror could conclude that there was a minimal nexus
    to interstate commerce.
    II.
    Lorenzo Rodriguez challenges the pretrial identification in a photo array
    and the testimony regarding that array as a violation of his due process rights. The
    Government argues that Lorenzo Rodriguez waived his right to this challenge
    because he did not file a motion to suppress as required by Federal Rule of
    4
    Criminal Procedure 12(b)(3)(C) or seek a waiver under Federal Rule of Criminal
    Procedure Rule 12(e).
    Rule 12(b)(3)(C) requires that a motion to suppress evidence be made
    before trial or it is waived. See United States v. Nix, 
    438 F.3d 1284
    , 1288 (11th
    Cir. 2006) (denying a challenge to a search warrant because challenge was not
    preserved by a pretrial motion to suppress); United States v. Slocum, 
    708 F.2d 587
    ,
    600 (11th Cir. 1983) (denying a motion to suppress testimony when motion was
    not raised pretrial). Under Rule 12(e) the court may grant a waiver for good cause.
    Here, the Defendant never filed a pretrial motion to suppress, nor did he
    object during trial. Instead, he argues this issue for the first time on appeal,
    without first seeking a waiver in the district court. Under Rule 12(b)(3)(C) he has
    waived any challenge to the photo array. See 
    Slocum, 708 F.2d at 600
    .
    III.
    We review the admission of prior crimes or bad acts under Federal Rule of
    Evidence 404(b) for abuse of discretion. United States v. Ellisor, 
    522 F.3d 1255
    ,
    1267 (11th Cir. 2008). “A defendant must object at trial to preserve an objection
    on appeal; the overruling of a motion in limine does not suffice.” United States v.
    Khoury, 
    901 F.2d 948
    , 966 (11th Cir. 1990). Because Lorenzo Rodriguez did not
    raise any objections to the evidence after the district court ruled on the in limine
    5
    motion, we review this issue for plain error. We reverse for plain error when
    “there is (1) error, (2) that is plain, (3) that affects the substantial rights, and even
    then, only if (4) the error seriously affects the fairness, integrity, or public
    reputation of judicial proceedings.” United States v. Arias-Izquierdo, 
    449 F.3d 1168
    , 1185 n.8 (11th Cir. 2006).
    Rule 404 of the Federal Rules of Evidence prohibits the admission of “other
    crimes, wrongs, or acts” if used “to prove the character of a person”; however, this
    evidence may be admitted “for other purposes, such as proof of motive,
    opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
    or accident.” To admit evidence under Rule 404(b), three conditions must be met:
    (1) the evidence must be relevant to an issue other than the defendant’s character;
    (2) the act must be established by sufficient proof to permit a jury finding that the
    defendant committed the extrinsic act; and (3) the probative value of the evidence
    must not be substantially outweighed by its undue prejudice and must meet the
    other requirements of Rule 403. United States v. Matthews, 
    431 F.3d 1296
    ,
    1310–11 (11th Cir. 2005) (per curiam).
    The challenged evidence relates to intent. “A defendant who enters a not
    guilty plea makes intent a material issue, imposing a substantial burden on the
    government to prove intent; the government may meet this burden with qualifying
    6
    404(b) evidence absent affirmative steps by the defendant to remove intent as an
    issue.” United States v. Delgado, 
    56 F.3d 1357
    , 1365 (11th Cir. 1995). To prove
    intent the Government was permitted to submit evidence that Lorenzo Rodriguez
    committed similar armed robberies to steal money and drugs with the same
    codefendants. See United States v. Dickerson, 
    248 F.3d 1036
    , 1047 (11th Cir.
    2001) (requiring that the prior act offered as evidence of intent involve the same
    mental state as the charged offense).
    The second condition of admissibility can be established through the
    uncorroborated word of an accomplice. 
    Id. The Government
    properly relied on
    Lorenzo Rodriguez’s accomplices to establish that he committed the previous
    armed robberies. The Government also corroborated the testimony by providing
    documentary evidence of the prior convictions.
    The third condition requires the district court to consider factors such as the
    government’s need for evidence of intent, the similarity between the charged and
    extrinsic offenses, and the time elapsed between the charged and extrinsic
    offenses. 
    Id. Rule 404(b)
    is a rule of inclusion, and evidence should not be
    excluded where it is central to the prosecution’s case. United States v. Eckhardt,
    
    466 F.3d 938
    , 946 (11th Cir. 2006). Here, the prior crimes happened in or about
    2001, and less time has elapsed here than in other cases where we permitted
    7
    inclusion of similar evidence. United States v. Lampley, 
    68 F.3d 1296
    , 1300 (11th
    Cir. 1995) (including evidence where fifteen years elapsed). Furthermore, the
    prior crimes were home-invasion robberies committed with the same codefedants.
    The district court did not commit plain error by admitting the evidence, as it was
    highly probative.
    IV.
    We review rulings about alleged discovery violations under Federal Rule of
    Criminal Procedure 16 for an abuse of discretion. United States v. Hastamorir,
    
    881 F.2d 1551
    , 1559 (11th Cir. 1989). We review a district court’s evidentiary
    rulings, including witness testimony under Federal Rules of Evidence 701 and
    702, for abuse of discretion. United States v. Hill, 
    643 F.3d 807
    , 840–41 (11th
    Cir. 2011).
    Rule 16 provides the rules for disclosure and discovery in preparation for a
    criminal trial. Federal Rule of Criminal Procedure 16(a)(1)(E) requires the
    government, upon the defendant’s request, to produce physical evidence in its
    possession, custody, or control that it intends to rely upon during its case-in-chief.
    A party has a continuing duty to promptly disclose the existence of evidence that
    must be produced upon discovery before or during trial. Fed. R. Crim. P. 16(c). A
    district court may, upon a failure to comply, exclude any undisclosed evidence.
    8
    Fed. R. Crim. P. 16(d)(2)(C). Late disclosure of Rule 16 evidence necessitates
    reversal only if it violates a defendant’s substantial rights. United States v.
    Bueno-Sierra, 
    99 F.3d 375
    , 380 (11th Cir. 1996) (per curiam). Substantial
    prejudice occurs if a defendant is unduly surprised and lacks an adequate
    opportunity to prepare a defense. 
    Id. Roughly a
    month before trial the Government produced the cellular
    telephone records. These records included all of the information that the Detective
    testified about during trial. Because the defense had a month to prepare, the
    district court did not abuse its discretion by admitting the evidence at trial.
    A witness is considered a lay witness if his or her testimony is in the form of
    opinions “which are (a) rationally based on the perception of the witness, (b)
    helpful to a clear understanding of the witness’ testimony or the determination of a
    fact in issue, and (c) not based on scientific, technical, or other specialized
    knowledge within the scope of Rule 702.” Fed. R. Evid. 701. We have
    recognized that officers and employees can testify as lay witnesses “based upon
    their particularized knowledge garnered from years of experience within the
    field.” 
    Hill, 643 F.3d at 841
    (citation omitted).
    The Detective’s testimony was not based on scientific, technical, or other
    specialized knowledge. He only reviewed the telephone records and the locations
    9
    of the cellular towers for each relevant call. Based on his personal knowledge of
    the location of cell towers, he testified as to the general locations of a
    codefendant’s phone at particular times during the conspiracy. The district court
    did not abuse its discretion by including the Detective’s testimony under Rule 701.
    V.
    We review de novo a district court’s determination as to whether a Brady
    violation occurred. United States v. Beasley, 
    72 F.3d 1518
    , 1525 (11th Cir. 1996)
    (per curiam). Under Brady, a defendant’s due process rights are violated when the
    prosecution suppresses material evidence favorable to the defendant, irrespective
    of the good faith or bad faith of the prosecution. 
    Brady, 373 U.S. at 87
    , 83 S. Ct.
    at 1196–97. To establish a Brady violation, the defendant must show that: (1) the
    prosecution possesses evidence, including impeachment evidence; (2) the
    defendant does not possess the evidence, nor could he obtain it himself with any
    reasonable diligence; (3) the prosecution suppressed the favorable evidence; and
    (4) had the evidence been disclosed to the defense, a reasonable probability exists
    that the outcome of the proceedings would have been different. United States v.
    Hansen, 
    262 F.3d 1217
    , 1234 (11th Cir. 2001) (per curiam). In considering
    whether the government’s nondisclosure of exculpatory information violated a
    defendant’s due process rights, “the focus is not upon the fact of nondisclosure,
    10
    but upon the impact of the nondisclosure on the jury’s verdict.” United States v.
    Kopituk, 
    690 F.2d 1289
    , 1339 (11th Cir. 1982).
    The delayed disclosure of Brady evidence compels reversal only when the
    defendant demonstrates prejudice. United States v. Beale, 
    921 F.2d 1412
    , 1426
    (11th Cir. 1991). In the context of the government’s failure to disclose
    impeachment evidence, a defendant is prejudiced where there is “a reasonable
    probability that, had the evidence been disclosed to the defense, the result of the
    proceeding would have been different. A ‘reasonable probability’ is a probability
    sufficient to undermine confidence in the outcome.” United States v. Bagley, 
    473 U.S. 667
    , 682, 
    105 S. Ct. 3375
    , 3383 (1985). “The mere possibility that an item of
    undisclosed information might have helped the defense, or might have affected the
    outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”
    United States v. Agurs, 
    427 U.S. 97
    , 109–10, 
    96 S. Ct. 2392
    , 2400 (1976).
    Here, Lorenzo Rodriguez alleges that the Government redacted potential
    Brady materials in reports and notes of agents and witnesses, including (1)
    identifications made of the robbers by the victims; (2) inconsistent statements and
    charged and uncharged misconduct conducted by his codefendatns; and (3)
    information about other people who were related to one of the codefendants and
    had a role in the current robbery. However, Lorenzo Rodriguez has not provided
    11
    specific examples of how this seriously prejudiced him at trial. Although Lorenzo
    Rodriguez made several objections at trial based on alleged Brady violations, the
    district court reviewed each argument and properly ruled that there was no Brady
    violation. After reviewing the in camera material, we affirm the district court’s
    holding.
    VI.
    Under the cumulative error doctrine, even if individual judicial errors would
    not be sufficient to warrant reversal, the defendant may have been denied a fair
    trial when the effect of all the errors is evaluated cumulatively. United States v.
    Lopez, 
    590 F.3d 1238
    , 1258 (11th Cir. 2009). “In addressing a claim of
    cumulative error, we must examine the trial as a whole to determine whether the
    appellant was afforded a fundamentally fair trial.” 
    Id. (quotation omitted).
    Here,
    the district court did not err; therefore, there was no cumulative error.
    AFFIRMED.
    12