496 F.3d 495 (6th Cir. 2007), 03-2152, United States v. Garcia

Docket Nº:03-2152.
Citation:496 F.3d 495
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Nicholas A. GARCIA, Defendant-Appellant.
Case Date:August 08, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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496 F.3d 495 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


Nicholas A. GARCIA, Defendant-Appellant.

No. 03-2152.

United States Court of Appeals, Sixth Circuit.

August 8, 2007

Argued: September 20, 2006.

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 92-20103-David M. Lawson, District Judge.

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David C. Thomas, CHICAGO-KENT COLLEGE OF LAW, Chicago, Illinois, for Appellant.

Janet L. Parker, ASSISTANT UNITED STATES ATTORNEY, Michigan, for Appellee.


David C. Thomas, CHICAGO-KENT COLLEGE OF LAW, Chicago, Illinois, for Appellant.

Janet L. Parker, ASSISTANT UNITED STATES ATTORNEY, Bay City, Michigan, for Appellee.

Before: BATCHELDER and MOORE, Circuit Judges, HOOD, District Judge.[*]



Defendant Nicholas Garcia ("Garcia") was indicted on one count of conspiring to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. The jury found Garcia guilty of this charge, and the district court sentenced him to 360 months' imprisonment. On appeal Garcia contends that (1) the district court erred in denying the motion to suppress evidence found on his person and in the vehicle in which he was riding; (2) the district court erred in denying the motion to suppress evidence discovered during a search of his residence; (3) a prior Sixth Circuit panel erred in upholding the timeliness of the fourth superseding indictment issued against him; and (4) his case should be remanded for re-sentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).1 We

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find no err in the district court's admission of evidence found on Garcia's person and in the vehicle in which he was riding, and conclude that the district court committed harmless error in admitting some of the evidence discovered during the search of his residence. Furthermore, we apply the law of the case doctrine in refusing to address the timeliness of the fourth superseding indictment. We therefore AFFIRM Garcia's conviction, but because we conclude that his sentencing violated Booker, we VACATE his sentence and REMAND for further proceedings.

I. Factual and Procedural Background

Garcia and at least eight other individuals were involved in a sweeping and large-scale plan to transport and distribute mass quantities of marijuana. The marijuana was imported from Mexico into Texas, and the co-conspirators planned to transport a large shipment to Birch Run, Michigan, in late November 1992. On November 23, 1992, one of the co-conspirators, Alex Ovalle, and an unknown companion traveled to Michigan in search of a location to unload their marijuana. The two men stayed at the Sheraton Inn in Saginaw, Michigan, located approximately 20 miles from Birch Run. Soon after arriving, they purchased a 1986 GMC Suburban to facilitate their local travel. The Sheraton's front office manager, Marcia Becker, grew suspicious of their activities and informed local law enforcement officer, Michael Berent, of her concerns. After a few days, Ovalle and his companion left Michigan and returned to Texas.

On November 30, 1992, Ovalle and Ben Canales returned to the Sheraton in Saginaw. Becker notified the police of Ovalle's return, and a team of officers responded by assembling in the room next to Ovalle's, listening through cracks in the adjoining doors, monitoring individuals entering the room, and reviewing phone records. The officers heard the men refer to nine-millimeters, money counters, kilos, thousands of dollars, "something arriving tomorrow," and the need to "break it down." The officers followed - or at least attempted to follow - Ovalle and Canales as they traveled in the Suburban, met with random individuals around town, and shopped at industrial supply stores. The officers eventually overheard the men complain that "they would have to find a different motel because too many people were asking too many questions." On December 2, 1992, Ovalle and Canales checked out of the Sheraton.

On that same morning, Defendant Nicholas Garcia and Cruz Rodriguez arrived at the airport in Bay City, Michigan. Rodriguez phoned the Sheraton and requested a ride from the airport to the motel, claiming that his boss, Alex Ovalle, was staying there. Becker authorized the courtesy van to transport Rodriguez and Garcia to the Sheraton and informed Officer Berent of their request for a ride. Despite his having checked out earlier that morning, Ovalle returned to the Sheraton to pick up Garcia and Rodriguez. In the meantime, Officer Berent had contacted Chief Assistant Prosecutor Howard Gave who informed him that the police had sufficient evidence to stop the Suburban for "investigative purposes." When the courtesy van arrived at the Sheraton, Garcia and Rodriguez exited the van, transferred their luggage to the Suburban driven by Ovalle, and drove away quickly.

Shortly thereafter the officers executed a "felony stop" of the Suburban. After the Suburban pulled to the side of the road, numerous police officers exited their vehicles with their weapons drawn. Via public address system, the officers demanded that Ovalle throw the keys onto the pavement.

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The five occupants - Ovalle, Canales, Rodriguez, Garcia, and Orville Dale Irwin - were instructed to exit the vehicle, walk backwards towards the officers, and get down on their knees. The officers approached the occupants, frisked them, handcuffed them, and took them to police vehicles. The pat down of Garcia resulted in the seizure of his pager, which was admitted as evidence at trial, and the officers' preliminary questioning of Irwin revealed that the men were now staying at the Super 8 Motel in Birch Run. The five men were then transported to the Michigan State Police station where they were detained for five hours until their formal arrest later that evening.

Within half an hour of the stop of the Suburban, the officers performed a canine narcotics sniff on the vehicle, returning two positive "hits." The officers included the results of the canine sniff in the affidavit supporting the warrant to search the Suburban. About two hours later, the officers executed the search warrant on the Suburban, seizing miscellaneous papers, luggage, briefcases, power tools, a high-capacity scale, and more than $25,000 in cash. At trial the government introduced Garcia's luggage tag and two bundles of $5,000 in green plastic wrap that were found in his bags. The officers later executed a search warrant on a tractor-trailer parked at the Super 8 Hotel in Birch Run, discovering a fiberglass tank containing over 3,000 pounds of marijuana hidden behind a "false wall" in the trailer.

Meanwhile in Texas, Officer Callaway Fowler of the San Antonio Police Department was involved in a separate drug investigation of Garcia and his wife Susana. Approximately two weeks after Garcia's arrest in Michigan, Officer Fowler received an anonymous phone call alleging that cocaine was stored at the Garcias' San Antonio residence. The next day - on the basis of the anonymous tip and evidence acquired during his investigation - Officer Fowler obtained a state warrant to search for cocaine at Susana Garcia's home. The warrant authorized a search for cocaine and an arrest of Susana Garcia and "any other parties found on [the] premises or making their escape therefrom." The warrant specified only cocaine - it did not mention documents or drug paraphernalia or otherwise mention Nicholas Garcia. Because Officer Fowler had been sharing information with the Drug Enforcement Agency ("DEA") for several months, he notified the DEA task force in San Antonio of the warrant, and Agent Michael Belton expressed an interest in accompanying Officer Fowler during the search.

Later that day the search was executed by Officer Fowler, DEA Agent Belton, DEA Agent Ron Bennett, IRS Agent Larry Zunker, and other San Antonio officers. During an hour of searching, the officers discovered small amounts of cocaine and marijuana residue and seized hundreds of documents. In particular Officer Fowler seized crumbled pieces of notebook paper displaying various mathematical calculations, which were found in the bottom of a foot locker emitting a strong marijuana odor, and containing marijuana residue, zigzag papers, scales, and green plastic shrink wrap. The officers also seized a number of documents from the file cabinet located in the master bedroom. These documents included receipts and other financial records showing the vast discrepancy between the Garcias' reported income and their yearly expenditures. The officers also seized two invoices containing co-conspirator Irwin's name and a map of San Antonio on which an area of the city notorious for drug activity was circled in red. At trial the government introduced approximately twenty documents - including those mentioned above - seized during this search.

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Garcia and eight others were originally indicted for a drug distribution conspiracy alleged to have begun in November 1992. A few months later the grand jury returned a superseding indictment that extended the beginning of the conspiracy to September 1992. Garcia pled not guilty, went to trial, and was convicted by a jury. On appeal, a panel of this Court reversed Garcia's conviction, holding that the jurors who convicted him were selected through a plan that violated the Fifth Amendment Equal Protection Clause. See United States v. Ovalle, 136 F.3d 1092, 1107 (6th Cir. 1998).


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