United States v. Ochoa
| Decision Date | 25 October 2019 |
| Docket Number | No. 18-10142,No. 16-17609,16-17609 |
| Citation | 941 F.3d 1074 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Daniel OCHOA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Daniel Ochoa, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Aileen Cannon, Jason Wu, Assistant U.S. Attorney, Timothy J. Abraham, Brian Dobbins, Yeney Hernandez, Assistant U.S. Attorney, Vanessa S. Johannes, Assistant U.S. Attorney, Alison Whitney Lehr, Elina A. Rubin-Smith, Assistant U.S. Attorney, Emily M. Smachetti, U.S. Attorney Service-Southern District of Florida, U.S. Attorney Service-SFL, Miami, FL, Brandy Brentari Galler, U.S. Attorney's Office, West Palm Beach, FL, for Plaintiff-Appellee.
Katherine Anna Carmon, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, Gail M. Stage, Federal Public Defender's Office, Fort Lauderdale, FL, for Defendant-Appellant.
Before ROSENBAUM, GRANT and HULL, Circuit Judges.
Following two jury trials, Daniel Ochoa appeals his convictions and sentences for Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2, knowingly carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and knowingly possessing a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
On appeal, Ochoa argues that the district court erred in: (1) limiting his cross-examination of FBI Task Force Officer Gerard Starkey; (2) denying his motion to suppress pre- and post- Miranda 1 statements; (3) dismissing Count Three of the original indictment without prejudice; and (4) denying his motions for judgment of acquittal in both trials. Ochoa also contends that the cumulative error doctrine requires that his convictions be vacated and that the district court procedurally erred in calculating his advisory guidelines range during both of his sentencing proceedings. After review, and with the benefit of oral argument, we affirm Ochoa’s convictions and sentences.
We begin by describing the underlying armed robbery offense that gave rise to the charges against Ochoa, then move on to his arrest and subsequent questioning by law enforcement. Our description is based on the evidence presented at trial, as well as testimony and evidence presented during a pre-trial suppression hearing.
On August 15, 2014, an armored Brink’s truck was scheduled to deliver $30,000 to Check Cashing USA in Miami. The truck was manned by two crew members, that is, a driver and a "messenger." The messenger was "responsible for the contents of the truck," and was tasked with "get[ting] off the truck and then go[ing] into stops" to "make a pickup and/or delivery." Around 9:00 a.m. that day, in broad daylight, when the messenger, 72-year-old Andres Perez, exited the truck to deliver the $30,000 to Check Cashing USA, he was confronted by a man who pointed a .40 caliber handgun2 at him and said, "This is a holdup." The man shot Perez in the leg, took the bag of money, and then ran away.
Thereafter, investigators developed a lead and began to focus on Ochoa as the perpetrator of the robbery. Once the investigators identified Ochoa as a suspect, Officer Starkey put together a photo lineup including Ochoa’s driver’s license photo. Officer Starkey then showed the photo lineup to the victim (Perez) and two other witnesses to the robbery who were previously interviewed by investigators. All three witnesses identified Ochoa as the perpetrator of the robbery. These identifications occurred approximately two weeks after the robbery.
Officer Starkey obtained an arrest warrant for Ochoa. A SWAT team was dispatched to arrest Ochoa at his residence. Upon arriving at Ochoa’s residence around 6:00 a.m., the SWAT team leader, FBI Special Agent Geoffrey Swinerton, ordered everyone out of the residence. Five people—three males, including Ochoa, and two females—exited the residence. Agent Swinerton spoke to the three males, one of whom was later identified as Ochoa’s 15-year-old brother Angel. Agent Swinerton asked them if there were other individuals in the residence and if there was anything in the residence that could potentially harm the SWAT team members who might enter the residence to search it. In particular, he asked them about "[b]ombs, booby traps, weapons," and anything else that could be "harmful."
The residents confirmed that no one else was in the residence and initially claimed there was nothing dangerous in the residence. Agent Swinerton then "pressed the question again," in part because he thought, based on Ochoa’s facial expression, there might be something in the residence he would want to know about before sending the members of the team in. In "press[ing] the question," Agent Swinerton said something to the effect of, At that point, Ochoa indicated there was a handgun in a drawer in one of the bedrooms.
Agent Swinerton then gave the SWAT team permission to enter the residence and conduct a safety sweep to confirm that there were no other occupants. The SWAT team, however, did not search for, or retrieve, a handgun.
Following his arrest, Ochoa was transported to the FBI field office in Miami, where Officer Starkey and another FBI special agent interviewed him. The interview was video and audio recorded. Before reading Ochoa his Miranda rights, Officer Starkey asked if Ochoa needed to use the restroom or wanted anything to eat or drink. Officer Starkey then asked a series of biographical questions as part of the booking process, and to confirm that Ochoa could speak English and was capable of making a reasonable decision concerning his rights. Officer Starkey then provided Ochoa with an "Advice of Rights" form, which included a recitation of Ochoa’s Miranda rights. Officer Starkey reviewed each statement on the form with Ochoa, and Ochoa answered "Yes" when asked whether he understood each right.
When Officer Starkey reached the final portion of the form, Ochoa expressed some confusion. The final portion of the form was headed "WAIVER OF RIGHTS" and stated as follows:
After Officer Starkey read this provision, Ochoa repeatedly asked Officer Starkey to "hold on," at which point Officer Starkey read the provision again. At that point, Ochoa stated he did not "really agree with that one," and Officer Starkey responded that he was not "asking if you agree with it." Ochoa then stated, Ochoa then expressed concern that if he said yes, that meant he was "willing to cooperate." Officer Starkey then attempted to further explain the Waiver of Rights provision as follows:
Ochoa then signed the Advice of Rights form and agreed to continue the interview. The form shows Ochoa’s initials beside each individual right and his signature at the bottom.
Notably, Ochoa did not, during the course of the interview, confess to any of the charged offenses. He did, however, again discuss the presence of a firearm in the residence. Specifically, Ochoa acknowledged that he had told the "SWAT people that came in the house" that "[he] had a firearm in [his] room," but he noted that he never said the firearm was his. When Officer Starkey asked if there were any firearms in the house, Ochoa again stated that there was a gun "in a drawer" in "the last [room] to the right," though he claimed he could not recall its type or color. Upon further questioning, Ochoa appeared to confirm that he was referring to "the room that [he] occup[ies]," agreeing with Officer Starkey’s statement that "in your room there should only be one gun." He stated later in the interview, however, that he had acknowledged only "somewhat" that he "knew that the gun was in that room in the ... drawer."
While Officer Starkey interviewed Ochoa at the field office, other agents remained at Ochoa’s residence to secure the area until a search warrant could be obtained. The search warrant application referenced Ochoa’s pre- and post-Miranda statements concerning the presence of a gun in the residence. During this time, some other occupants of the residence, including Ochoa’s younger brother Angel, remained near the house.
After obtaining the warrant, agents searched the residence, discovering (1) $12,900 in cash—consisting entirely of $100 bills—wrapped in a bag hidden in the freezer; (2) large amounts of newly purchased merchandise with the tags still attached, along with receipts that documented purchases made after the date of the robbery; (3) firearm accessories, specifically a holster, a large capacity magazine with .45-caliber ammunition inside of it, and a box containing four rounds of .45-caliber Hornady brand ammunition; (4) a passport photo and travel documents indicating Ochoa planned to fly to Nicaragua and that he purchased his plane ticket after the robbery; (5) a Florida driver’s license bearing Ochoa’s name and photograph; and (6) several cell phones, along with a receipt confirming Ochoa had purchased one...
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