U.S. v. Sandoval-Rodriguez

• Decision Date: 11 July 2006
• Docket Number: No. 05-3589.,05-3589.
• Citation: 452 F.3d 984
• Parties: UNITED STATES of America, Appellee, v. Patricio SANDOVAL-RODRIGUEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

452 F.3d 984

UNITED STATES of America, Appellee, v. Patricio SANDOVAL-RODRIGUEZ, Appellant.

No. 05-3589.

United States Court of Appeals, Eighth Circuit.

Submitted: April 19, 2006.

Filed: July 11, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph Bertogli, argued, Des Moines, IA, for appellant.

Benjamin J. Stansberry, argued, Asst. U.S. Atty., Des Moines, IA, for appellee.

Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.

HANSEN, Circuit Judge.

Following a jury verdict finding Patricio Sandoval-Rodriguez (Sandoval) guilty of conspiring to distribute cocaine and marijuana, see 21 U.S.C. §§ 841(b)(1)(A) & 846, and of being an illegal alien in possession of a firearm, see 18 U.S.C. § 922(g)(5)(A), Sandoval pleaded guilty to a third charge of illegal reentry into the United States, see 8 U.S.C. § 1326(a). Sandoval appeals his conviction and his 200-month sentence. We affirm the district court's¹ judgment.

I.

Sandoval was indicted, along with codefendants Augustin Sandoval-Rodriguez (Sandoval's brother whom we will refer to as Augustin for simplicity) and Bobbie Sue Pollard (Augustin's girlfriend), for their drug distribution activities in Des Moines, Iowa. Special Agent Patrick Waymire of the Iowa Division of Narcotics Enforcement received information from a confidential informant in May 2004 that Augustin and Pollard were involved in dealing drugs. He received information from a second confidential source in July 2004 that they had firearms at their residence and that Augustin possibly kept drugs at his brother's residence at 125 ½ NW Aurora Street in Des Moines. Agent Waymire and three other agents followed up on the investigation and visited Pollard and Augustin's residence on July 16, 2004. Pollard gave Agent Waymire verbal consent to search the residence.

Following the consensual search and the seizure of several drug-related items, Pollard agreed to speak to Agent Waymire. She told Agent Waymire that she had dated Augustin for two years, kept drug notes for him, and accompanied him to deliver cocaine at a residence on Walnut Street in Des Moines. Pollard also told Agent Waymire that she believed that Augustin picked up his drugs from his brother's residence at 125 ½ NW Aurora Street and that she had seen user quantities of marijuana at Sandoval's residence within the last two weeks.

Shortly after this interview, law enforcement officers went to Sandoval's residence to question him about the drug investigation. When the officers knocked on the door, several people, including Sandoval, attempted to flee and were detained. The officers conducted a protective sweep of the house, during which they discovered narcotics, firearms, and drug paraphernalia in plain view. After the protective sweep, the officers secured the house and detained the occupants until they secured a warrant to search the house. The subsequent search revealed 161 grams of cocaine, 620 grams of marijuana, $31,837 in cash, several handguns, ammunition, and drug paraphernalia. Sandoval was arrested and taken into custody.

Sandoval was indicted for conspiring to distribute an unspecified amount of cocaine and marijuana. A Grand Jury returned a superseding indictment specifying drug weights of at least five kilograms of cocaine and at least 100 kilograms of marijuana, which implicated the heightened penalty provisions of 21 U.S.C. § 841(b)(1)(A). In support of the superseding indictment, the government offered testimony from four witnesses, three of whom also testified at Sandoval's trial.

On January 14, 2005, Sandoval moved to suppress evidence obtained from the search of his residence, arguing that the affidavit submitted by Agent Waymire in support of the search warrant contained knowing misstatements of fact concerning whether Pollard had witnessed Augustin retrieve drugs from Sandoval's residence. The district court noted a discrepancy between the warrant application affidavit and a subsequent report prepared by Agent Waymire concerning his interview with Pollard, but the district court determined that the affidavit supported probable cause even without the information attributed to Pollard.

On January 14, 2005, Sandoval also filed a motion to disclose the identity of the witnesses who testified at the Grand Jury hearing. The magistrate judge granted the motion in part and ordered the government to disclose the identities of three of the witnesses no later than two weeks before the scheduled trial date of March 7, 2005, and to disclose the fourth witness at least one week before trial. Following the government's disclosure of the witnesses, the district court granted Sandoval's subsequent motion to continue the trial to May 2, 2005. On the first day of trial, Sandoval moved to exclude three other government witnesses based on the government's late disclosure of the witnesses. The district court granted the motion as to two of the witnesses based on unfairness to the defense. The district court allowed the testimony of William Quinn, the third witness.

Three witnesses in addition to Quinn testified about their drug dealings with Sandoval. Following Quinn's testimony, Sandoval renewed his objection to Quinn's testimony and moved for a mistrial, which the district court denied. The jury found Sandoval guilty of the conspiracy and the possession of a firearm by an illegal alien charges, and Sandoval later pleaded guilty to the charge of being an illegal alien unlawfully in the United States following deportation.

In arriving at an advisory Guidelines sentencing range, the district court started its base offense level calculation at level 34, two levels lower than recommended in the Presentence Investigation Report, reasoning that the drug quantity attributed to Sandoval was only slightly greater than the amount triggering a base offense level of 36. The district court then added two levels for possession of a firearm in connection with a drug offense and rejected Sandoval's request for a two-level downward adjustment for acceptance of responsibility. The district court calculated an advisory Guidelines range of 188 to 235 months and sentenced Sandoval to 200 months of imprisonment. Sandoval appeals.

II. Motion to Suppress

Sandoval claims that the district court erred in denying his motion to suppress evidence obtained pursuant to the search warrant because the affidavit supporting the warrant application contained material misstatements by the affiant. We review the district court's factual findings supporting the denial for clear error, but we review de novo its legal conclusion that Sandoval's Fourth Amendment rights were not violated. See United States v. Spencer, 439 F.3d 905, 913 (8th Cir.2006). "We must affirm an order denying a motion to suppress unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made." Id. (internal citations and marks omitted).

Sandoval makes a Franks² challenge to the affidavit supporting the warrant application, arguing that it contained material misleading statements. In support of the search warrant application, Agent Waymire stated in the affidavit that Pollard told him that Augustin picked up a black trash bag containing narcotics from Sandoval's residence at 125½ NW Aurora Street, Des Moines, Iowa. Sandoval claims that this statement is misleading because Agent Waymire's subsequently-prepared report of the interview stated that Pollard drove Augustin to Sandoval's residence, but that she waited outside in the car. Thus, Pollard did not witness Augustin retrieve drugs from Sandoval's residence, and, according to Sandoval, the statement suggesting to the contrary in the warrant application was intentionally false, or at least made in reckless disregard for the truth.

To prevail on a Franks challenge to a search warrant application, the defendant must establish "that a false statement was included in the affidavit knowingly and intentionally or with reckless disregard for its truth, and that the affidavit's remaining content is insufficient to establish probable cause." United States v. Roberson, 439 F.3d 934, 939 (8th Cir.2006). Even if the contested statements are false and misleading, the search warrant may still stand if the offending statements are removed and the remaining statements in the application would support a finding of probable cause to support the search warrant. Id.

Pollard's statements to Agent Waymire were not the only facts recited in the warrant application. The application also included the following information: a confidential informant had informed Agent Waymire that Augustin stored narcotics at Sandoval's Aurora Street residence; upon the officers' arrival at the Aurora Street address, several occupants, including Sandoval, attempted to flee; and the officers observed narcotics, firearms, and drug paraphernalia during a protective sweep of the Aurora Street residence. These facts more than support a finding of probable cause to support the search warrant without considering the information supplied by Pollard. The district court properly denied Sandoval's motion to suppress the evidence.

III. Quinn Testimony

We will reverse the district court's refusal to exclude the testimony of William Quinn based on the government's alleged late disclosure only if the district court abused its discretion in so ruling. See United States v. Pherigo, 327 F.3d 690, 694 (8th Cir.2003) (standard of review for alleged discovery deadline violation), cert. denied, 539 U.S. 969, 123 S.Ct. 2663, 156 L.Ed.2d 674 and 540 U.S. 960, 124 S.Ct. 420, 157 L.Ed.2d 300 (2003). "In our review we consider (1) whether the Government acted in bad faith and the reason(s) for delay . . .; (2) whether there is any prejudice to the defendant; and (3) whether any lesser sanction is appropriate to secure future Government compliance." Id.

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