United States v. Gonzalez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4541
TOMAS GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-96-461-A)
Submitted: June 2, 1998
Decided: July 1, 1998
Before HAMILTON and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John C. Kiyonaga, KIYONAGA & KIYONAGA, Alexandria, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, James
L. Trump, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Tomas Gonzalez was convicted by a jury of conspiracy to distrib-
ute and possess with intent to distribute five or more kilograms of
cocaine in violation of 21 U.S.C. § 846 (1994), and four counts of
aiding and abetting the possession with intent to distribute approxi-
mately seven kilograms of cocaine in violation of 21 U.S.C.
§ 841(a)(1) (1994), and 18 U.S.C. § 2 (1994). The court sentenced
him to a 235-month prison term and five years of supervised release.
On appeal, Gonzalez challenges the district court's denial of his
motion to suppress evidence and exclusion of evidence of mental dis-
ease or defect. Finding no error, we affirm Gonzalez' conviction.
I.
Gonzalez first claims that the district court erred in denying his
motion to suppress evidence. The facts are undisputed. Agents of the
Federal Bureau of Investigation arrested Gonzalez at his home pursu-
ant to a warrant, and he told the agents he wanted to speak with his
attorney. About ten minutes later, agents asked Gonzalez and his wife
if they would consent to a search of their home. Agents also asked
Gonzalez if he owned any of the cars parked in front of his home and
if he would consent to a search of the vehicles. Gonzalez and his wife
signed a form, written in Spanish, reflecting their consent to search
their home and cars. In the search, agents seized some documents
from Gonzalez' home.
Gonzalez moved to suppress the evidence on the ground that he
consented after he invoked his right to counsel and that his consent
was not voluntary. The district court denied the motion, finding that
consent was voluntary and was not vitiated by Gonzalez' request for
counsel. We review legal conclusions in a district court's suppression
determination de novo and review factual findings for clear error. See
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United States v. Johnson, 114 F.3d 435, 439 (4th Cir.), cert. denied,
___ U.S. ___, 66 U.S.L.W. 3262 (U.S. Oct. 6, 1997) (No. 97-5705).
On appeal, relying on Edwards v. Arizona, 451 U.S. 477 (1981),
Gonzalez contends that his Fifth Amendment rights were violated
when agents asked for consent to search after he invoked his right to
counsel and therefore that the fruits of the search should have been
suppressed.* In Edwards, the Supreme Court held that "an accused
. . . having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations with the
police." Id. at 484-85. Gonzalez' consent to search, however, is not
an interrogation that triggers his previously invoked right to counsel.
See United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996) (cit-
ing United States v. Smith, 3 F.3d 1088, 1098 (7th Cir. 1993) (collect-
ing cases adopting rule)). To the extent Gonzalez claims that the
agents' questions regarding ownership of the cars violated his Fifth
Amendment rights, see Smith, 3 F.3d at 1098, any error was harmless.
Although Gonzalez identified the cars as his, the agents seized noth-
ing from them. We therefore find that the district court did not clearly
err in denying Gonzalez' motion to suppress evidence.
II.
Gonzalez also asserts that the district court wrongfully excluded
evidence of his mental disease or defect because the government was
on notice of his intention to introduce such evidence. Rule 12.2 of the
Federal Rules of Criminal Procedure requires that a defendant notify
the government in writing of any intention to introduce expert testi-
mony relating to a mental disease, defect, or any other mental condi-
tion of the defendant bearing upon the issue of guilt and that the
notice be given during the time provided for pretrial motions or such
later time as the district court directs. See Fed. R. Crim. P. 12.2(b).
If a defendant fails to comply with this requirement, "the court may
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*Gonzalez apparently has abandoned his assertion that his consent to
search was not voluntary because he failed to provide argument in his
brief. See Tucker v. Waddell, 83 F.3d 688, 690 n.1 (4th Cir. 1996) (not-
ing that issues not briefed or argued deemed abandoned).
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exclude the testimony of any expert witness offered by the defendant
on the issue of the defendant's guilt." Fed. R. Crim. P. 12.2(d). We
review the district court's evidentiary ruling for an abuse of discre-
tion. See United States v. Grimmond, 137 F.3d 823, 831 (4th Cir.
1998).
It is undisputed that Gonzalez failed to file the required notice
under Rule 12.2(b) by the deadline the court set for the filing of pre-
trial motions. In trial exhibits submitted one day before trial, Gonza-
lez included exhibits referencing his mental condition. The
government filed a motion in limine to exclude the exhibits based on
Gonzalez' failure to comply with Rule 12.2(b), even after the govern-
ment in writing three weeks before trial reminded Gonzalez of Rule
12.2(b)'s requirements. The district court granted the government's
motion, finding that Gonzalez failed to give proper notice. We find
no abuse of discretion in the district court's decision. See id.III.
Accordingly, we affirm Gonzalez' conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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