United States v. Genaro Flores-Duran

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENARO FLORES-DURAN, a/k/a Genaro Flores, a/k/a Carlos
Perez-Diaz, a/k/a Carlos Perez,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:10-cr-00095-FL-1)
Argued: May 14, 2013 Decided: July 1, 2013
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Geoffrey Wuensch Hosford, HOSFORD & HOSFORD, P.C.,
Wilmington, North Carolina, for Appellant. Jennifer P. May-
Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United
States Attorney, Kristine L. Fritz, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Genaro Flores-Duran and co-defendants Salvador
Flores-Duran (Salvador), Jorge Albarran-Rivera (Jorge), and
Zacharias Espinoza were charged in a two-count superseding
indictment with conspiracy to distribute and possess with intent
to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 846 (Count One), and aiding and abetting each other
in the possession of firearms in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. §§ 924(c) and 2
(Count Two). A jury convicted Flores-Duran of both counts. The
district court subsequently sentenced him to 292 months’
imprisonment on Count One and sixty months’ imprisonment, to run
consecutively, on Count Two, for a total of 352 months’
imprisonment. Thereafter, Flores-Duran filed a timely notice of
appeal in which he raises various arguments as to why we ought
to grant him a new trial or, in the alternative, a new
sentencing hearing. We have jurisdiction over this appeal
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
Discerning no reversible error, we affirm.
I.
We set forth a brief overview of the facts of this case
here. We provide more detailed facts, as relevant to the
appellate issues, below.
2
In 2009, federal and state law enforcement agencies from
South Carolina and North Carolina discovered a group of Mexican
nationals involved in a drug trafficking conspiracy dealing in
large quantities of cocaine in both South Carolina and North
Carolina. The multi-year conspiracy lasted until August 11,
2010.
The investigation established that Flores-Duran and his
brother, Salvador, were the leaders of the conspiracy. Other
participants included, but were not limited to, Jorge, Espinoza,
Luis Cesar-Rosas, Esteban Rivera, and Concepcion Villegas-
Flores.
On August 11, 2010, Deputy Jonah Jenkins of the Jasper
County Sheriff’s Department stopped Flores-Duran for following
another vehicle too closely, in violation of South Carolina
Code Section 56-5-1930(a). Flores-Duran consented to a search
of his vehicle. During the search, Jenkins found a white
powder, which, after a field test, showed evidence of cocaine.
Moreover, Jenkins’s K-9 partner alerted on some bags in the
trunk of Flores-Duran’s car. Thereafter, Jenkins arrested
Flores-Duran.
The grand jury returned a superseding indictment against
Flores-Duran, Salvador, Jorge, and Espinoza on March 10, 2011,
charging them with conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine, in
3
violation of 21 U.S.C. § 846 (Count One), and possession of
firearms in furtherance of a drug trafficking offense and aiding
and abetting, in violation of 18 U.S.C. §§ 924(c) and 2 (Count
Two).
At trial, the jury convicted Flores-Duran of both counts.
The district court subsequently sentenced him to 292 months’
imprisonment on Count One and sixty months’ imprisonment, to run
consecutively, on Count Two, for a total of 352 months’
imprisonment. This appeal followed.
II.
First, Flores-Duran contends that the district court abused
its discretion by failing to dismiss the charges against him on
account of the government’s violation of the magistrate judge’s
discovery order. Rule 16(d)(2) of the Federal Rules of Criminal
Procedure provides the district court with broad discretion to
fashion the appropriate remedy for a party’s discovery
violation. Yet, its discretion is guided by “a discrete set of
traditionally judicial inquiries concerning ‘the reasons for the
government’s delay and whether it acted intentionally or in bad
faith; the degree of prejudice, if any, suffered by the
defendant; and whether any less severe sanction will remedy the
prejudice and the wrongdoing of the government.’” United States
4
v. Gonzales-Flores, 701 F.3d 112, 116 (4th Cir. 2012) (quoting
United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997)).
Flores-Duran maintains that “[d]uring the week prior to
trial, [that was then set for April 2011,] the [g]overnment sent
over one thousand pages of additional discovery, the bulk of
which was due no later than fourteen days prior to trial.”
Based on the discovery violation, Flores-Duran moved to dismiss
the indictment. He also sought, as alternatives, to exclude
certain witnesses or to continue the trial. The district court
continued the trial to May 2011.
The government concedes that it failed to provide all of
the discovery materials that it was obligated to provide within
the time period required by the magistrate judge. According to
the government, however, there were several reasons for the
failure, including government counsel’s misreading of the
discovery order; a power outage caused by a large storm at the
courthouse in Raleigh, where the government’s offices are
located; and the government’s last minute decision to present
certain evidence.
Flores-Duran argues that he was prejudiced by the
government’s late disclosure in two ways. “First, the
[g]overnment’s action delayed the trial of his case. There can
be no reason for the late release of over one thousand pages of
documents other than to ensure a continuance of the trial.”
5
But, this suggests bad faith on behalf of the government, and
neither we nor the district court have found any. Instead, we,
like the district court, find the government’s explanation
plausible. As explained by the district court:
Well, I have three defendants, each of whom,
through his attorney, indicates that he is not
prepared to go forward to trial. And, what’s been
described, with the overlay of a storm, is somewhat of
a perfect storm. The government’s decision not to
prepare for this trial until the eve of it, based on
workload issues and other matters, and that
preparation resulted in a determination that a number
of other documents needed to be disclosed.
And then there was a storm, and there were issues
arising, and the disclosure was suggested as being
late in an e-mail to which no defendant responded.
There was some effort on the part of all counsel,
it appears, to be ready today, despite the volume of
material disclosed last week. And I understand none
of you is ready for trial.
Each of you seeks a continuance of between three
weeks and a month, and I’m going to allow that, with
concern, too, as we have approximately 50 people ready
to submit to the jury processes. And the Court will
be explaining to them that their services cannot be
received today.
Flores-Duran also asserts that he was prejudiced because
“the continuance afforded the [g]overnment more time to locate
Alan Pickering who identified Genaro Flores-Duran as the man who
paid to rent his trailer.” We find this argument unpersuasive,
and will discuss it in more detail in the next section.
As already stated, we find the reasons given by the
government for the delay to be credible. And, we find no bad
6
faith. Flores-Duran would have been greatly prejudiced had the
district court not provided some sort of remedy for the
government’s discovery violation. That said, we are satisfied
that the district court’s choice of a continuance, as opposed to
outright dismissal, cured any prejudice and was not an abuse of
discretion.
III.
Flores-Duran maintains that the district court also abused
its discretion in not excluding Pickering’s testimony and
related documents based on the government’s late disclosure that
it intended to call him as a witness. “[D]ecisions regarding
whether a witness should be allowed to testify are generally
reviewed for abuse of discretion.” United States v. Fulks, 454
F.3d 410, 421 (4th Cir. 2006).
Pursuant to Rule 16(a)(1)(E) of the Federal Rules of
Criminal Procedure,
Upon a defendant’s request, the government must permit
the defendant to inspect and to copy or photograph
books, papers, documents, data, photographs, tangible
objects, buildings or places, or copies or portions of
any of these items, if the item is within the
government’s possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its
case-in-chief at trial; or
7
(iii) the item was obtained from or belongs to the
defendant.
The obligation to provide these materials is ongoing:
A party who discovers additional evidence or material
before or during trial must promptly disclose its
existence to the other party or the court if:
(1) the evidence or material is subject to discovery
or inspection under this rule; and
(2) the other party previously requested, or the court
ordered, its production.
Fed. R. Crim. P. 16(c).
When replacement counsel took responsibility for this case
in mid-May, approximately two weeks before the case was to go to
trial, she requested that law enforcement agents find the
landlord of the second trailer in Loris, South Carolina, which
Flores-Duran rented and used as a stash house for his drug
operation. Authorities recovered firearms, over a kilogram of
cocaine, and over one-hundred thousand dollars in United States
currency when they raided the trailer. Flores-Duran had earlier
used another trailer in Loris as a stash house. Government’s
counsel informed defense counsel that she had made this request.
On Friday afternoon, May 20, 2011, which was the Friday
before trial was to begin, the agents met with the landlord,
Alan Pickering. At that meeting, Pickering gave the agents
documents related to the rental of the second trailer and made
an out-of-court identification of Flores-Duran. The next day,
8
counsel for the government faxed the documents to counsel for
Flores-Duran but failed to telephone to ensure receipt. As it
turned out, Flores-Duran’s counsel did not receive the documents
until Monday—what was to be the first day of trial. The
district court was troubled by the late disclosure but decided
not to exclude the testimony. Instead, it continued the trial
for a month. This was proper, and Flores-Duran does not argue
otherwise in his brief.
According to Flores-Duran, however, it was the April 2011
continuance that prejudiced him such that the district court
should not have allowed Pickering to testify. Flores-Duran
avows, “Without that continuance, the [g]overnment would not
have had Alan Pickering available as a witness. Genaro Flores-
Duran was prejudiced by both the continuance and also by the
denial of the motion to exclude Mr. Pickering’s documents, photo
identification, and his other testimony.” We make two
observations. First, there is nothing in the record to suggest
that the government did anything to delay the trial so that
Pickering could be found. In fact, there was no attempt to find
Pickering until after the April 2011 continuance had been
ordered. And second, just as the continuance allowed the
government additional time to locate a witness favorable to its
case, Flores-Duran had additional time to locate witnesses that
might have been favorable to his case, as well.
9
For these reasons, we conclude that the district court did
not abuse its discretion in its refusal to exclude Pickering’s
testimony and related documents from Flores-Duran’s trial.
IV.
Flores-Duran next challenges the district court’s decision
to deny his motion to exclude Pickering’s out-of-court
photographic identification of him. We review “factual
particulars of [the] identification . . . for clear error.”
United States v. Saunders, 501 F.3d 384, 389 (4th Cir. 2007).
And, “[w]e review de novo the court’s legal conclusion as to
whether the identification violated the Due Process Clause.”
Id.The defendant has the burden of establishing that the out-
of-court identification was infirm. Id. “The consideration of
whether the identification testimony is admissible proceeds in
two steps.” Id. First, the defendant must demonstrate the
identification process was impermissibly suggestive. Id. If he
meets this burden, then the court must consider “whether the
identification was nevertheless reliable in the context of all
of the circumstances.” Id. at 389-90.
“A witness’s out-of-court photo identification that is
unreliable and therefore inadmissible on due process grounds
also renders as inadmissible his subsequent in-court
10
identification.” Id. at 390. “In this circumstance, as the
Supreme Court has said, the witness ‘is apt to retain in his
memory the image of the photograph rather than the person
actually seen, reducing the trustworthiness of subsequent . . .
courtroom identification.’” Id. (quoting Simmons v. United
States, 390 U.S. 377, 383-84 (1968)).
According to the testimony at the district court hearing on
this matter, Officer William Kitelinger, a corporal with the
Myrtle Beach Police Department, met Pickering at Colonial Mall
between Myrtle Beach and North Myrtle Beach at approximately
4:00 PM on May 20, 2011. According to his testimony, he
showed [Pickering] three photographs, asked him if he
recognized anybody in any of the photographs. He
immediately identified one person in the photograph.
I asked him who that person was and he said that was
the person that gave him the money for the rent or was
present when the trailer was rented. I had him then
turn over the picture and write on the back who that
person was to him. Then he gave me a photocopy of a
receipt for the rent for the trailer. I then
collected up those items and left.
Kitelinger asserted that he failed to give the cautionary
instruction normally given for a photo lineup because “it wasn’t
in [his] opinion a photo lineup. The photos given were people
that we had already identified, so it wasn’t standard.”
Further, he agreed that, in a standard lineup, there are
normally six, not three, photographs shown. In Pickering’s
testimony at the hearing, he stated that he felt no pressure to
11
choose one of the photographs and did not feel rushed, although
Kitelinger seemed as if he was in a hurry.
According to Flores-Duran, “[t]he officer gave Mr.
Pickering no guidance when the Myrtle Beach Police Department
officers routinely provide cautionary instructions to people
viewing photos. The method employed was impermissibly
suggestive, and as such, the district court erred in allowing
admission of the out-of-court identification.” But we agree
with the district court: It “had an opportunity to observe both
witnesses and hear what [they] each had to say in response to
[counsel’s] questions. [Although] it certainly seems it was a
brief encounter and not a very involved one, [Pickering’s]
identification of [Flores-Duran] may be allowed into evidence as
it was not an unduly suggestive process.”
Because the identification was not impermissibly
suggestive, there is no reason for us to consider whether it was
reliable. Consequently, we find no error in the district
court’s decision to deny Flores-Duran’s motion to exclude
Pickering’s out-of-court photographic identification of him.
V.
Next, Flores-Duran complains that the district court erred
in not granting his motion for judgment of acquittal on the gun
charge. Our review of the district court’s denial of a motion
12
for judgment of acquittal is de novo. United States v. United
Med. & Surgical Supply Corp., 989 F.2d 1390, 1401 (4th Cir.
1993). In making such a review, we must decide “whether there
is substantial evidence (direct or circumstantial) which, taken
in the light most favorable to the prosecution, would warrant a
jury finding that the defendant was guilty beyond a reasonable
doubt.” United States v. MacCloskey, 682 F.2d 468, 473 (4th
Cir. 1982).
According to Flores-Duran, there is no substantial evidence
to support a finding that he possessed a firearm in furtherance
of the drug conspiracy charged in Count One of the superseding
indictment. But, “[a] defendant may be convicted of a § 924(c)
charge on the basis of a coconspirator’s use of a gun if the use
was in furtherance of the conspiracy and was reasonably
foreseeable to the defendant.” United States v. Wilson, 135
F.3d 291, 305 (4th Cir. 1998). There are many ways in which a
firearm might be used to further or advance drug trafficking:
For example, a gun could provide a defense against
someone trying to steal drugs or drug profits, or it
might lessen the chance that a robbery would even be
attempted. Additionally, a gun might enable a drug
trafficker to ensure that he collects during a drug
deal. And a gun could serve as protection in the
event that a deal turns sour. Or it might prevent a
transaction from turning sour in the first place.
United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).
13
There is considerable evidence in the record to support
Flores-Duran’s §§ 924(c) and 2 conviction. For instance, there
were approximately thirteen guns in the first Loris trailer that
Flores-Duran rented for selling cocaine. As Esteban Rivera, one
of Flores-Duran’s co-conspirators, testified at trial, the guns
were for him and others “to defend [themselves] from people who
may want to come in and rob or if there were any problems
between [the customers] or the police.” When Rivera and his
coconspirators moved into the second Loris trailer that Flores-
Duran rented, they took the guns with them. Asked where the
guns came from, Rivera stated that Flores-Duran “bought them
from this guy that came one time. It was a Mexican guy.” He
also attested that on a couple of occasions he and Flores-Duran
tried out one of the guns.
Moreover, Luis Cesar-Rosas testified that on March 24,
2010, when he purchased ten ounces of cocaine from Flores-Duran
at the second Loris trailer, “There was a gun on the countertop,
it was right where you walk in the door. . . . I recall I did
see it on the first time I was there. He had it on his
waistline but the other time it was laying on the countertop.”
The record is replete with many more examples that we need
not enumerate here. Suffice it to say, substantial evidence
supports Flores-Duran’s § 924(c) and 2 conviction.
14
VI.
Flores-Duran also argues that the district court erred in
denying his motion to suppress evidence obtained during the
August 11, 2010, traffic stop in Jasper County, South Carolina.
Although he consented to the search of his vehicle, he avers
that the traffic stop itself was improper. Ordinarily, on a
motion to suppress we review a district court’s legal
conclusions de novo and its factual findings for clear error.
See Ornelas v. United States, 517 U.S. 690, 699 (1996). In
doing so, we construe the evidence in the light most favorable
to the prevailing party below. United States v. Perkins, 363
F.3d 317, 320 (4th Cir. 2004). But when, as here, the
magistrate judge makes a recommendation on how to dispose of the
motion and a party fails to timely object, that party waives
appellate review of the district court’s decision to adopt the
recommendation. Wright v. Collins, 766 F.2d 841, 845 (4th Cir.
1985).
A magistrate judge considered Flores-Duran’s motion to
suppress and issued a memorandum and recommendation to the
district court suggesting that it deny the motion. In his
recommendation, the magistrate judge noted that the parties
would have fourteen days to file any objections and declared
that failure to file any objections by a party would bar that
party from seeking appellate review. Still, Flores-Duran failed
15
to file any objections to the memorandum and recommendation.
Thus, Flores-Duran waived appellate review. The district court
subsequently adopted the recommendation and denied Flores-
Duran’s motion to suppress.
Alternatively, even assuming that Flores-Duran preserved
this issue for appeal, we would still hold that the district
court did not err in finding that Deputy Jenkins had probable
cause to stop Flores-Duran for a violation of South Carolina
Code Section 56-5-1930(a). Pursuant to Section 56-5-1930(a),
“The driver of a motor vehicle shall not follow another vehicle
more closely than is reasonable and prudent, having due regard
for the speed of such vehicles and the traffic upon and the
condition of the highway.” “As a general matter, the decision
to stop an automobile is reasonable where the police have
probable cause to believe that a traffic violation has
occurred.” United States v. Sowards, 690 F.3d 583, 588 (4th
Cir. 2012) (quoting Whren v. United States, 517 U.S. 806, 810
(1996)) (internal quotation marks omitted).
The evidence the government presented at the hearing on
this matter demonstrated the following: In deciding whether a
vehicle is following another vehicle too closely, Deputy Jenkins
employs a rule of thumb that a safe following distance is
approximately one car length for every ten miles per hour that
the vehicle is traveling. In this instance, Deputy Jenkins
16
observed Flores-Duran driving seventy miles per hour within just
one car length of a tow truck as he approached an active
construction site.
Flores-Duran argues that he was stopped for a violation of
Deputy Jenkins’ rule of thumb and not Section 56-5-1930(a).
Thus, according to Flores-Duran, Deputy Jenkins did not have
probable cause to stop him. We are unconvinced. Because Deputy
Jenkins thought that Flores-Duran was following the tow truck
“more closely than [was] reasonable and prudent,” S.C. Code
Ann. § 56-5-1930(a), he had probable cause to initiate a stop of
Flores-Duran’s vehicle. Hence, because Jenkins had probable
cause to initiate the stop, and Flores-Duran consented to the
search of his vehicle, the district court properly denied
Flores-Duran’s motion to suppress the evidence gathered as a
result of the stop.
VII.
As to sentencing, Flores-Duran claims that the district
court erred in overruling his objection to the four-point
enhancement that it ultimately imposed pursuant to U.S.S.G.
§ 3B1.1(a). When deciding whether the district court properly
applied the Sentencing Guidelines, “we review the court’s
factual findings for clear error and its legal conclusions de
novo.” United States v. Allen, 446 F.3d 522, 527 (4th Cir.
17
2006). The district court’s decision concerning a role
adjustment is a factual determination, reviewable for clear
error. United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir.
2009). “A finding of fact is clearly erroneous when, ‘although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.’” In re Mosko, 515 F.3d 319,
324 (4th Cir. 2008) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)).
The district court applied a four-level enhancement for
Flores-Duran’s leadership role in the drug conspiracy. Flores-
Duran argues, however, that the evidence establishes that he
engaged in only buyer-seller relationships.
Pursuant to Section 3B1.1(a) of the Sentencing Guidelines,
the district court is to impose a four-level enhancement to a
defendant’s sentence “[i]f the defendant was an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive.” In determining
whether one is a leader or organizer, the district court should
consider the following factors:
the 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.
18
U.S.S.G. § 3B1.1 cmt. n.4.
As detailed in the Addendum to the Presentence Report and
relied upon by the district court,
Flores-Duran engaged in a conspiracy to distribute
cocaine from 2004 to August 11, 2010. Specifically,
in 2004, [Flores-Duran] relocated from Florida to
North Carolina and began selling cocaine with his
brother, Salvador Flores-Duran; however, a short time
later, the brothers began obtaining cocaine separately
but from the same sources, and utilizing several of
the same co-conspirators in their drug distribution
activities. To further the conspiracy, Genaro Flores-
Duran also recruited individuals to pick up and
distribute cocaine for him, established stash houses
to store and distribute cocaine, and employed an
individual to count and package money brought into one
of the stash houses. Specifically, Concepcion
Villegas[-]Flores was paid a total of $10,000 to
travel to Georgia on at least seven occasions to pick
up several kilograms of cocaine for Genaro Flores-
Duran and Salvador Flores-Duran. Additionally, Luis
[Cesar-]Rosas sold over 250 grams of cocaine to a
confidential informant for [Flores-Duran]. Lastly,
Genaro Flores-Duran employed Esteban Rivera to count
and package money brought into his (Genaro Flores-
Duran’s) stash house located in Loris, South Carolina.
Concerning the district court’s imposition of the
enhancement, having carefully reviewed the entire record before
us, we are not “left with the definite and firm conviction that
a mistake has been committed.” In re Mosko, 515 F.3d at 324(quoting U.S. Gypsum Co., 333 U.S. at 395) (internal quotation
marks omitted). Hence, we find no clear error in the district
court’s decision to employ the four-level enhancement to Flores-
Duran’s sentence.
19
VIII.
Finally, Flores-Duran contests the district court’s
decision denying his motion to dismiss the gun charge for lack
of venue. “[W]e review the district court’s determination of
venue de novo.” United States v. Wilson, 262 F.3d 305, 320 (4th
Cir. 2001).
Flores-Duran makes no real argument here, except to state
that “[he] seeks to preserve this issue on appeal.” In fact, at
oral argument, his counsel agreed that the government cited the
appropriate law on this issue. Thus, we only briefly address
this issue here.
“In determining where a crime was committed for purposes of
venue, ‘a court must initially identify the conduct constituting
the offense (the nature of the crime) and then discern the
location of the commission of the criminal acts.’” United
States v. Robinson, 275 F.3d 371, 378 (4th Cir. 2001) (quoting
United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999)).
The underlying offense here is a drug conspiracy. Venue is
proper in a § 942(c) prosecution in any district where the
underlying offense occurred. Rodriguez-Moreno, 526 U.S. at 281.
Several overt acts in furtherance of the conspiracy occurred in
the Eastern District of North Carolina, including, but not
limited to, selling cocaine, receiving deliveries of cocaine,
and recruiting or attempting to recruit other accomplices.
20
Thus, because the underlying offense occurred in the Eastern
District of North Carolina, venue was proper in that district.
Hence, the district court did not err in denying Flores-Duran’s
motion to dismiss for lack of venue.
IX.
For the foregoing reasons, we affirm Flores-Duran’s
conviction and sentence.
AFFIRMED
21