U.S. v. Rodriguez, 03-1058.
| Decision Date | 11 July 2005 |
| Docket Number | No. 03-1316.,No. 03-1058.,03-1058.,03-1316. |
| Citation | 414 F.3d 837 |
| Parties | UNITED STATES of America, Appellee, v. Antonio RODRIGUEZ, Appellant. United States of America, Appellant, v. Antonio Rodriguez, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jeremy P. Murphy, argued, Lincoln, NE, for appellant.
Bruce W. Gillan, argued, Asst. U.S. Atty., Omaha, NE, for appellee.
Before RILEY, BEAM, and SMITH, Circuit Judges.
A jury found Antonio Rodriguez guilty of conspiring to distribute 500 grams or more of methamphetamine and 500 grams or more of cocaine. The district court denied two of Rodriguez's pretrial motions. Rodriguez objected under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the obstruction of justice enhancement in the Presentence Investigation Report ("PSR"). During the sentencing phase of trial, the district court granted Rodriguez's downward-departure motion and sentenced him to 262 months' imprisonment-followed by five years of supervised release. Rodriguez appeals his conviction and sentence. The government cross-appeals the district court's decision to depart downward. We affirm the conviction, but reverse and remand for resentencing.
During late 2000 and early 2001, Rodriguez assisted local, state, and federal drug enforcement authorities in Nebraska. However, in early fall of 2001, Rodriguez himself became the subject of a drug investigation. After surveillance, and with the aid of a confidential informant, state police arrested Rodriguez during a controlled methamphetamine buy on August 6, 2001. Police searched Rodriguez's car and found two ounces of methamphetamine. Investigator Richard Aldag prepared an affidavit and obtained a search warrant for Rodriguez's motel room and obtained consent to search from Rodriguez's female companion, Amanda Brejcha-Walenta, for her motel room. The search uncovered marijuana and drug paraphernalia in Brejcha-Walenta's room and methamphetamine, a scale, and drug paraphernalia from Rodriguez's room.
On November 15, 2001, a grand jury indicted Rodriguez and Amanda Brejcha-Walenta for conspiracy to distribute 500 grams or more of methamphetamine and 500 grams or more of cocaine. Rodriguez filed several pretrial motions, including a motion to suppress and motion to dismiss and strike. A hearing was held on February 1, 2002, on the motion to suppress. In that motion, Rodriguez claimed Aldag's affidavit-offered in support of a warrant to search-stated knowingly false information. The magistrate judge filed a "Report and Recommendation," which found that Rodriguez had not made a sufficient showing to entitle him to a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The "Report and Recommendation" concluded that, by omitting the challenged information, there still remained sufficient information to support a finding of probable cause. The district court adopted the magistrate's report and denied Rodriguez's suppression motion.
Rodriguez also filed a motion to dismiss, claiming that the indictment should be dismissed because of an inconsistency between information in the affidavit for search warrant and the testimony of the affiant before the grand jury. The magistrate judge concluded in a second "Report and Recommendation" that the inconsistencies between the affidavit and the grand jury testimony were not material to the finding of probable cause by the grand jury and therefore did not form the basis for dismissal of the indictment. The magistrate's second "Report and Recommendation" was adopted by the district court, and Rodriguez's motion to dismiss was denied.
At trial Brejcha-Walenta, Jay Wills, Aaron Dixon, Fidel Martinez, Jose Villalobos, and Nick Janes testified against Rodriguez. All of these individuals were alleged co-conspirators with Rodriguez. Based upon their testimony, the jury convicted Rodriguez. During the sentencing phase of trial the government objected to the quantity of controlled substances attributed to Rodriguez contained in the PSR. The government asserted that—based on Martinez's testimony—the quantities would total more than fifteen kilograms of methamphetamine. Additionally, the government offered testimony that Rodriguez possessed a firearm related to the drug-trafficking offense for which he was convicted.
Rodriguez also objected to the drug quantity, to the government's version of the offense in the PSR, to the four-level enhancement imposed for his role in the offense, to the two-level enhancement for obstruction of justice, and to the Criminal-History points assessed. Rodriguez also filed a motion for downward departure based upon eight separate grounds. He also asserted Eighth Amendment violations. The court overruled the drug-quantity objections and used Martinez's testimony to calculate the amount attributable to the defendant and attributed ten kilograms of methamphetamine and four pounds of cocaine to Rodriguez.1
The court found that Rodriguez was an organizer or leader of a conspiracy involving five or more individuals and as such a four-level increase was appropriate. The court also found that Rodriguez obstructed justice by attempting to convince co-conspirator Brejcha-Walenta not to talk to authorities. The court denied Rodriguez's Eighth Amendment claims and the government's gun-enhancement motion.
Finally, the court decided to depart downward from a total offense level of 42, criminal history category II, with a sentencing range of 360 months to life, to a total offense level of 38, with a range of 262 to 327 months. The court then sentenced the defendant to 262 months' imprisonment followed by five years of supervised release.
Of the numerous issues raised2 on appeal, we will address only the following (1) Whether the district court erred in denying Rodriguez a Franks hearing and in its finding that the indictment was valid; (2) Whether the district court properly denied Rodriguez's motions to suppress evidence obtained from the hotel and vehicle searches; (3) Whether there was sufficient evidence to support the conspiracy conviction; (4) Whether the district court clearly erred in its drug-quantity determination; (5) Whether the district court committed plain error in not ordering a mistrial due to juror misconduct; (6) Whether the district court erred in its decision to depart downward; and (7) Whether the district court violated Apprendi.
Rodriguez first argues that the district court erred in denying a hearing pursuant to Franks, and in denying his motion to dismiss due to a defective indictment. A refusal to hold a Franks hearing is reviewed for abuse of discretion. United States v. Gabrio, 295 F.3d 880, 882 (8th Cir.2002). We also utilize the abuse of discretion standard when reviewing a ruling on a motion to dismiss an indictment due to false testimony presented to a grand jury. United States v. Moore, 184 F.3d 790, 794 (8th Cir.1999).
To support his claim that the district court abused its discretion, Rodriguez notes that the search warrant affidavit contained false information regarding drug quantity and the grand-jury testimony contained false information about drug type and quantity. Specifically, Rodriguez alleges that Investigator Aldag lied to the grand jury when he stated that on July 27, 2001, cocaine—instead of methamphetamine—was purchased during an undercover buy. Rodriguez also brings to our attention inconsistencies in the reported quantity of methamphetamine recovered at the time of his arrest.3
The factual discrepancies between Investigator Aldag's affidavit and the indictment noted by Rodriguez, without more, do not establish an abuse of discretion on the part of the district court. Conclusory allegations of falsehood are insufficient to make a substantial preliminary showing that a false statement was intentionally or recklessly included in the affidavit. United States v. Mathison, 157 F.3d 541, 547-48 (8th Cir.1998). The small quantum of difference in the amount and description estimated in the warrant—and later corrected in the indictment—did nothing to diminish the illegality of Rodriguez's alleged conduct. Rodriguez does nothing more than point out minor descriptive inaccuracies—he has made no showing of intent or recklessness on the part of Investigator Aldag. When no proof is offered that an affiant deliberately lied or recklessly disregarded the truth, a Franks hearing is not required. United States v. Moore, 129 F.3d 989, 992 (8th Cir.1997), cert. denied, 523 U.S. 1067, 118 S.Ct. 1402, 140 L.Ed.2d 659 (1998).
More significantly, in order to establish a Franks violation, Rodriguez was required to show that the remaining content of the affidavit was insufficient to establish probable cause. United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.2001). The district court found the Aldag warrant affidavit sufficient—without the alleged false information. On appeal, Rodriguez does not challenge the sufficiency of the warrant without the false statement. We find no abuse of discretion in the district court's decision to refuse Rodriguez a Franks hearing or in its decision to deny Rodriguez's motion to dismiss.
Next, Rodriguez offers several arguments to support his claim that the district court erred in its refusal to suppress tainted evidence—allegedly gathered without proper constitutional authority. When considering the propriety of a denial of a motion to suppress, we review the district court's historical factual findings for clear error and its conclusions of law on the probable-cause issue de novo. United States v. Wells, 223 F.3d 835 (8th Cir.2000).
Rodriguez first claims that "there was no valid reason to conduct a search of the rental vehicle in this case"—even as an inventory search— and "the search violated the Fourth Amendment." H...
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