United States v. Edgar Vazquez

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12061
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR VAZQUEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:19-cr-00030-SPC-NPM-1
____________________
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2 Opinion of the Court 21-12061
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Edgar Vazquez appeals the district court’s denial of his mo-
tion to dismiss the indictment in part or, alternatively, to suppress
evidence obtained from a traffic stop, based on his claim that law
enforcement engaged in “outrageous conduct” by forcing him to
commit a traffic violation as a pretext to pull him over. The district
court found that the motion was untimely, that Vazquez failed to
show good cause to excuse the untimeliness, and that, in any case,
the motion failed on its merits. Vazquez argues that the district
court abused its discretion by denying his motion without a hear-
ing. After careful review, we affirm.
I.
In September 2018, Detective Christopher Rodriguez of the
Lee County Sheriff’s Office, a member of the highway interdiction
unit, received instructions from a narcotics officer to stop a red
Ford Edge in his patrol area. Rodriguez located the vehicle and
approached it from behind in another lane during rush-hour traffic.
As Rodriguez reached the Edge, which was traveling the speed
limit of 45 miles per hour, he saw the car abruptly decelerate for no
apparent reason and then speed up again. The cars behind the
Edge had to brake quickly to avoid a collision.
Seeing the abrupt deceleration, Rodriguez conducted a traf-
fic stop of the Edge, which was driven by Vazquez. A drug dog
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21-12061 Opinion of the Court 3
sniff led to the discovery of a roughly half-kilogram package of co-
caine under the driver’s seat. Vazquez was arrested, and officers
obtained a search warrant for his home. During that search, offic-
ers found a loaded pistol, cocaine, marijuana, cash, and drug para-
phernalia.
Vazquez was indicted in February 2019 on one count each
of possession with intent to distribute 500 grams or more of co-
caine, see 21 U.S.C. § 841(a)(1), (b)(1)(B), and possession of a fire-
arm in furtherance of a drug-trafficking crime, see 18 U.S.C. §
924(c)(1)(A)(i). A scheduling order entered in March 2019 set a
fourteen-day deadline for pretrial motions, including motions to
dismiss the indictment or to suppress. Then, in May 2019, a super-
seding indictment added another cocaine-trafficking count, see 21
U.S.C. § 841(a)(1), (b)(1)(C), not stemming from the traffic stop.
Meanwhile, Vazquez moved to suppress evidence obtained
from the traffic stop, which he asserted was pretextual and not sup-
ported by probable cause. 1 The district court held an evidentiary
hearing at which Rodriguez was the sole witness. When asked per-
sonally by the court, Vazquez declined to testify under the advice
of counsel. The court denied the motion to suppress in August
2019, concluding that Rodriguez had probable cause to stop
1 Vazquez later filed a motion to suppress alleging a defective search warrant,
which the district court denied after a hearing.
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4 Opinion of the Court 21-12061
Vazquez for violating Fla. Stat. § 316.183(5) by impeding the nor-
mal and reasonable flow of traffic.
In February 2020, after switching attorneys in November
2019, Vazquez again challenged the legality of the traffic stop, mov-
ing to dismiss the charges or suppress the evidence stemming from
the September 2018 stop. Acknowledging the motion was un-
timely, Vazquez asserted that “good cause” existed based on “new
facts” showing that a federal special agent was operating the vehi-
cle behind him—a black Chrysler 200. He said that the federal
agent “rapidly accelerated his vehicle and feinted at Defendant’s
vehicle, startling him,” at the same as Rodriguez was “aggres-
sive[ly] maneuvering” towards him in his patrol car. By aggres-
sively converging on him, he argued, the officers “engaged in out-
rageous conduct to induce a reaction by [him] that would justify a
pretextual stop,” in violation of his due-process rights.
Notably, Vazquez did not identify when he learned that the
driver of the Chrysler 200 was a federal agent. Nor did he suggest
he was unaware of the other alleged facts—that he braked hard in
response to two rapidly converging vehicles—before the denial of
the first motion to suppress. Indeed, the motion to dismiss or sup-
press indicates that this “important evidence” was not offered to
the court because prior counsel advised Vazquez not to testify at
the hearing, not because the information was unknown.
In opposition, the government argued that Vazquez lacked
good cause to excuse the untimely filing and that the motion was
meritless. It did not dispute that a federal agent was driving the
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21-12061 Opinion of the Court 5
Chrysler 200 and conducting surveillance on Vazquez, though it
denied any aggressive converging.
In reply, Vazquez declared that whether he “previously
knew some of the information is of no moment” because he had
been advised not to testify by prior counsel. Rather, in his view,
the federal agent’s involvement and the government’s acknowl-
edgment of that new fact were “sufficiently grave” to “render [his]
motion timely under Rule 12.”
The district court denied the motion as untimely and on the
merits. It was untimely, in the court’s view, because it was filed
ten months beyond the scheduling order’s deadline without good
cause. The court explained that Vazquez failed to identify when
he learned of the agent’s identity, which was necessary to assess
good cause, and that if he had slowed down because two vehicles
were converging aggressively on him, “he could have said so at the
other suppression hearing,” but he chose not to testify. On the
merits, the court reasoned that the alleged conduct was not suffi-
ciently outrageous in part because the officers did nothing to cause
his cocaine trafficking and gun possession.
At trial, the government elected to proceed on the two
counts stemming from the September 2018 traffic stop, and it dis-
missed the other count. Of those two counts, Vazquez contested
only the § 924(c) gun offense. The jury found him guilty of the
drug crime but acquitted him of the gun crime. The district court
sentenced him to 136 months’ imprisonment. Vazquez appeals.
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6 Opinion of the Court 21-12061
II.
We review de novo the denial of a motion to dismiss based
on outrageous government conduct. United States v. Castaneda,
997 F.3d 1318, 1325 (11th Cir. 2021). We review the denial of a
motion to suppress on the grounds of timeliness for an abuse of
discretion. United States v. Andres, 960 F.3d 1310, 1315 (11th Cir.
2020). Likewise, we review for an abuse of discretion the court’s
refusal to hold an evidentiary hearing. United States v. Massey, 89
F.3d 1433, 1443 (11th Cir. 1996).
III.
Under Rule 12, Fed. R. Crim. P., district courts may impose
and extend filing deadlines for certain pretrial motions, including
motions to suppress or to dismiss the indictment for nonjurisdic-
tional defects. Fed. R. Crim. P. 12(b)(3), (c)(1)–(2). “If a party does
not meet the deadline for making a Rule 12(b)(3) motion, the mo-
tion is untimely. But a court may consider the defense, objection,
or request if the party shows good cause.” Fed. R. Crim. P. 12(c)(3).
Here, Vazquez has never disputed that his motion to dismiss
or suppress was untimely under the court’s scheduling order and
Rule 12, so the question is whether he established “good cause.”
Fed. R. Crim. P. 12(b)(3), (c)(3). And he arguably abandons this
issue on appeal by failing to plainly and prominently raise it in his
briefing. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8
(11th Cir. 2003) (“[A] party seeking to raise a claim or issue on ap-
peal must plainly and prominently so indicate.”). At best he makes
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21-12061 Opinion of the Court 7
a few passing references, asserting that the motion was “based
upon new facts and information not previously disclosed by the
Government,” but he fails to develop this position at all. And “[w]e
have long held that an appellant abandons a claim when he either
makes only passing references to it or raises it in a perfunctory man-
ner without supporting arguments and authority.” Sapuppo v. All-
state Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
In any case, Vazquez has not shown good cause. “[T]he law
is clear that no good cause exists if the defendant had all the infor-
mation necessary to bring a Rule 12(b) motion before the date set
for pretrial motions, but failed to file it by that date.” Andres, 960
F.3d at 1316. “Neither a strategic decision nor inadvertence consti-
tutes good cause.” Id.
For the most part, Vazquez’s present motion to dismiss or
suppress simply reflects a change in strategy. After losing the first
motion to suppress evidence from the traffic stop, Vazquez ob-
tained a new attorney and then challenged the stop again. This
time, he relied on factual details—that he braked abruptly in re-
sponse to two rapidly converging vehicles, a marked police car and
a Chrysler 200—he had declined to testify about during the first
suppression hearing. But his strategic decision not to testify does
not constitute good cause sufficient to overcome the untimely fil-
ing of his motion to suppress. 2 See id.
2 To the extent Vazquez maintains counsel’s advice in this regard was consti-
tutionally deficient, and so warrants relief from his conviction, the record is
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8 Opinion of the Court 21-12061
The only truly new fact appears to be that a federal agent
was driving the Chrysler 200, which Vazquez argued made his out-
rageous-conduct defense available for the first time. As the district
court observed, though, Vazquez never identified when or how he
learned this information, which is necessary for the court to assess
good cause. Nor is it apparent that this information was not previ-
ously “reasonably available” to Vazquez. See Fed. R. Crim. P.
12(b)(3). Notably, by the time of the first suppression hearing, it
appears Vazquez knew that the traffic stop was allegedly pretextual
and stemmed from a narcotics investigation, and he had seen the
same Chrysler 200 several times before the day of the traffic stop.
In sum, Vasquez failed to explain why his current suppres-
sion arguments could not have been timely raised, and his strategic
decision not to testify in the prior hearing does not constitute good
cause under Rule 12. For these reasons, the district court did not
abuse its discretion by denying the second motion suppress as un-
timely. See id. And we affirm the district court’s denial of
Vazquez’s untimely motion to dismiss the indictment in part or to
suppress.
AFFIRMED.
inadequate to resolve that issue on direct appeal. See United States v. Verbit-
skaya, 406 F.3d 1324, 1337 (11th Cir. 2005) (“Except in the rare instance when
the record is sufficiently developed, we will not address claims for ineffective
assistance of counsel on direct appeal.”).