United States v. Perez-Trevino, 17-1289

• Decision Date: 29 May 2018
• Docket Number: No. 17-1718, No. 17-1352,No. 17-1289,17-1289
• Citation: 891 F.3d 359
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Marcos PEREZ–TREVINO, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Juan Flores, also known as Alejandro Becerra, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Daniela Castellanos, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

891 F.3d 359

UNITED STATES of America, Plaintiff–Appellee

v.Marcos PEREZ–TREVINO, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Juan Flores, also known as Alejandro Becerra, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Daniela Castellanos, Defendant–Appellant.

No. 17-1289

No. 17-1352

No. 17-1718

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2018

Filed: May 29, 2018

Rehearing and Rehearing En Banc Denied July 18, 2018^*

Lisa C. Williams, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff–Appellee United States of America.

Rockne Ole Cole, Cole & Vondra, Iowa City, IA, for Defendant–Appellant Marcos Perez–Trevino (Federal Prisoner: 13851–062).

Marcos Perez–Trevino, Pro Se.

Murray W. Bell, Bettendorf, IA, for Defendant–Appellant Juan Flores, also known as Alejandro Becerra (Federal Prisoner: 10719–062).

Juan Flores, Pro Se.

Daniela Castellanos, Pro Se.

Wallace L. Taylor, Attorney, Cedar Rapids, IA, for Defendant–Appellant Daniela Castellanos (Federal Prisoner: 16150–029).

Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Defendants/Appellants Marcos Perez–Trevino ("Perez–Trevino"); Juan Flores, a/k/a Alejandro Becerra ("Flores"); and Daniela Castellanos ("Castellanos") were tried together by a jury in the United States District Court for the Northern District of Iowa for their roles in a conspiracy to distribute methamphetamine. All three were found guilty and were sentenced by the court. After carefully considering the several issues raised by the appellants,we affirm the judgments of the district court.¹

I. BACKGROUND/PROCEDURE

In August 2015, eleven defendants, including the appellants, were charged in a conspiracy to deliver methamphetamine in and around Marshalltown, Iowa. Several of the defendants entered guilty pleas, but the appellants chose to proceed to a jury trial. During the six-day trial, some of the defendants’ original co-conspirators cooperated with the government and testified, hoping for more favorable sentencing recommendations.

Prior to trial, Perez–Trevino moved to suppress evidence obtained during an August 12, 2015, traffic stop in Oklahoma. Perez–Trevino argued that the vehicle was improperly impounded and the inventory search was unlawful. The motion was heard by the chief magistrate judge, and Chouteau (Oklahoma) Police Officer Thomas Scott Fisher testified at the hearing. The chief magistrate judge issued a report and recommendation that the motion be denied. The district court overruled Perez–Trevino’s objections, adopted the report and recommendation, and denied the motion.

Castellanos brought a pretrial motion to suppress evidence obtained from the interception of wire and electronic communications of a cell phone identified as Target Telephone #16, arguing that the application for the wiretap: (1) lacked sufficient specificity to establish probable cause, and (2) failed to sufficiently show the wiretap was necessary as required by 18 U.S.C. § 2518(3)(c). After argument on the motion without any additional evidence, the chief magistrate judge, finding the affidavit sufficient, issued a report and recommendation that the motion be denied. The district court overruled Castellanos’s objections, adopted the report and recommendation, and denied the motion.

During the five-day trial, the government witnesses testified about information gleaned during the investigation including evidence obtained from intercepts of several telephones. The cooperating co-conspirators testified about their own participation in the conspiracy and their knowledge of the participation of the three defendants. Following the procedures outlined in United States v. Bell, 573 F.2d 1040 (8th Cir. 1978), the trial court conditionally admitted hearsay evidence from alleged co-conspirators. Much of the testimony referenced Mario Murillo–Mora, a member of the conspiracy to distribute methamphetamine, who was connected by evidence to each of the defendants, as well as to other members of the conspiracy. The evidence revealed that the reason the government targeted various electronic devices, including telephone #16, was their connection to communications to and from Murillo–Mora related to the distribution of narcotics.

At the end of the government’s case, the court entertained objections to the co-conspirator hearsay testimony. The court overruled the objections, finding that each of the admitted statements was made by a co-conspirator in the course of and in furtherance of the conspiracy. The court denied Perez–Trevino’s request for a jury instruction on multiple conspiracies and an instruction regarding a mere buyer/seller relationship.

The jury found Perez–Trevino guilty of conspiracy to distribute 500 grams or more of a substance containing a detectable amount of methamphetamine, which contained more than 50 grams of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Flores and Castellanos were found guilty of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The district court sentenced Perez–Trevino to 292 months’ imprisonment and sentenced Flores and Castellanos to 240 months’ imprisonment.

II. SUPPRESSION MOTIONS

"When reviewing the denial of a motion to suppress, we review a district court’s factual findings for clear error and legal conclusions de novo." United States v. Evans, 781 F.3d 433, 436 (8th Cir. 2015) (citing United States v. Harris, 747 F.3d 1013, 1016 (8th Cir. 2014) ). We "will affirm the district court’s denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made." United States v. Collins, 883 F.3d 1029, 1031 (8th Cir. 2018) (quoting United States v. Braden, 844 F.3d 794, 799 (8th Cir. 2016) ). We may affirm on any ground supported by the record. United States v. Murillo–Salgado, 854 F.3d 407, 414 (8th Cir. 2017). For example, in United States v. Wells, 347 F.3d 280, 287 (8th Cir. 2003), we affirmed the denial of a motion to suppress based on the automobile exception to the warrant requirement rather than on the search-incident-to-arrest exception on which the district court relied.

A. Perez–Trevino—Search of Automobile and Contents

On August 12, 2015, Officer Fisher noticed a 2000 Oldsmobile Intrigue with North Dakota license plates traveling north on Highway 69 in Oklahoma. He stopped the vehicle for a taillight violation. As he approached the vehicle, Officer Fisher observed two occupants in the car. Perez–Trevino presented an identification card to Officer Fisher but claimed to be licensed in Texas. Officer Fisher had separate conversations with Perez–Trevino and the passenger. The two gave conflicting stories as to their destination: Perez–Trevino indicating Iowa City and the passenger claiming Marshalltown. Officer Fisher ran Perez–Trevino’s identifying information and determined that he did not have a valid license.² A license check for the passenger revealed that his license was suspended. Officer Fisher arrested Perez–Trevino for driving without a license. Having been instructed by the chief of police that stopped vehicles are not to be left abandoned on the roadside, Officer Fisher arranged to have the vehicle towed. Before the vehicle was towed, Officer Fisher prepared to do an inventory search of the vehicle in order to log any valuables. Officer Fisher testified:

Any time we have arrested someone out of a vehicle or we have made contact with somebody where a vehicle—where we have become liable for it because of an action from us, we must impound that vehicle with the two wrecker services we have on rotation and then we have to conduct a thorough vehicle inventory.

When Officer Fisher leaned inside the vehicle to begin the inventory, he smelled raw marijuana "directly over the center console." He checked the contents of the center console because, according to his testimony, "[i]t’s a common place, along with the glove box, for valuables or anything somebody is going to store in the vehicle." When he lifted the console, he discovered a plastic bag containing a green leafy substance, which was later determined to be marijuana. The inventory search further uncovered various food items and drinks. A one dollar bill containing a clear substance, later determined to be methamphetamine, was found under the passenger seat. Located in the back seat was a large cooler. Upon opening the cooler, Officer Fisher found more food and drinks and a Ziploc bag "containing a large amount of methamphetamine." It was later determined that the bag contained 877 grams of methamphetamine. A list of items found in the search was reported on a "CHOUTEAU POLICE DEPT. STORED VEHICLE REPORT" which indicated the vehicle was registered in North Dakota to Marcos and Maria Perez.

The Chouteau Police Department has a published policy for "Impoundment of Vehicles" that provides guidance for impounding and inventorying vehicles. Among the several stated reasons for impounding vehicles are safekeeping of evidence and "public assistance towing." The public assistance towing section specifically requires towing "[w]hen, following arrest of the owner/operator or for other reasons, the vehicle cannot be left at the scene without substantial risk of theft from or damage to the vehicle or personal property contained therein." The policy’s inventory procedure provides:

1. It is the duty of all officers, who impound motor vehicles, to perform an inventory of those vehicles.

2. The purpose of this inventory will be to ensure a proper accounting of all property in or attached to the vehicle in order to protect the officer from liability of assumed damages and/or missing property.

3. The officer performing the inventory will conduct a thorough and uniform inventory of

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