United States v. Colon-Torres

1

UNITED STATES OF AMERICA, Plaintiff, v. [1] SIXTO J COLON-TORRES, [2] FELIX A RAMOS-ROHENA, Defendants.

Crim. No. 20-175 (ADC)

United States District Court, D. Puerto Rico

July 31, 2023

OPINION AND ORDER

SAIDA M. DELGADO-COLON UNITED STATES DISTRICT JUDGE

Pending before the Court are co-defendant Sixto J. Colon-Torres's ("Colon-Torres") objections, ECF No 121, to the Report and Recommendation ("R&R") issued by United States Magistrate Judge Giselle Lopez-Soler ("Magistrate Judge") ECF No. 114, and co-defendant Felix Ramos-Rohena's ("Ramos-Rohena") motion for joinder at ECF No. 122.

For the following reasons, defendants' motions at ECF Nos. 121,122 are DENIED. After a careful review of the record, the suppression hearing's transcripts, the evidence and the filings in this case, the Court hereby ADOPTS the R&R. ECF No. 114. Accordingly, the motions to suppress at ECF Nos. 46, 61 are DENIED.

I. Procedural Background

A Grand Jury returned an indictment charging defendants with conspiracy to possess with intent to distribute 5 or more kilograms of cocaine (Count One) and possession with intent to distribute the same amounts of cocaine (Count Two) in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A)(ii) and 846. ECF No. 17.

Defendants moved separately to suppress the government's evidence on Fourth Amendment grounds. See ECF Nos. 46 61. U.S. CONST, amend. IV. Specifically, on October 1, 2020, Ramos-Rohena, through appointed counsel, filed a motion to suppress accompanied by several documents, including a declaration under penalty of perjury in support. ECF Nos. 46, 46-1. The government responded and Ramos-Rohena replied. ECF Nos. 46,46-1,53,54.

On December 11, 2020, Colon-Torres filed his motion to supress. ECF No. 61. Notably, unlike Ramos-Rohena's motion, Colon-Torres's motion did not include any affidavit or declaration in support.^[1] See id. Colon-Torres simply stated he "joined" Ramos-Rohena's motion to suppress and requested a hearing to "determine the reliability of the K-9 alert." Id., at 1.

The Court referred the motions to a United States Magistrate Judge for an evidentiary hearing and the issuance of a report and recommendation. ECF No. 70. The evidentiary hearing spanned for three days. The government called three law enforcement agents to the stand and introduced a video recording and several documents into evidence. On the defense's side, only co-defendant Ramos-Rohena testified. After receiving post-hearing briefs from the parties, on July 28, 2022, the Magistrate Judge entered her R&R. ECF No. 114. The Magistrate Judge recommends that the Court deny the motions to supress. Id. Pursuant to 28 U.S.C.A. § 636; Fed.R.Civ.P. 72; Local Civil Rule 72(d), objections to the R&R were due on August 11, 2022.

Unlike Colon-Torres, co-defendant Ramos-Rohena did not file an objection to the R&R before August 11,2022. Nor did he move for an extension of time to do so. Instead, on September 26,2022, co-defendant Ramos-Rohena filed a two-line motion simply "joining]" Colon-Torres's objections. ECF No. 123 at 1.

The Court will address each filing and the arguments therein in turn.

n. Discussion

On May 7, 2020, defendants and other passengers traveled on a boat ("Ferry Coastal Explorer") from Culebra, Puerto Rico to Ceiba, Puerto Rico. ECF No. 61 at 2. Each defendant traveled with a bag. ECF No. 61 at 2, 6. Acting on a tip provided by a confidential informant,^[2]upon arrival to Ceiba, Puerto Rico Police Department Agent Ishmael Feliciano-Mercado ("Agent Feliciano-Mercado") met the ferry upon its arrival to Ceiba and instructed all passengers with bags to line up in an area in front of the pier. Id., at 2. Federal Bureau of Investigations Agent Christopher Esteves-Diaz ("Agent Esteves-Diaz), handler of K-9 officer Onyx ("K-9" or "Onyx"), walked Onyx along the bags. Id. Upon reaching Colon-Torres's bag, Onyx gave a positive signal alerting to the presence of controlled substances on Colon-Torres's bag. Colon-Torres voluntarily opened his bag.^[3] Controlled substances were found in his bag. Id. Onyx then alerted to Ramos-Rohena's bag, which Ramos-Rohena opened. Controlled substances were also found in his bag. Id.

A. Co-defendant Ramos-Rohena

The R&R specifically warned that any objections must "be specific and [] filed within fourteen (14) days... Failure to file timely and specific objections to the [R&R] is a waiver of the right to review by the District Judge and of appellate review." ECF No. 114 at 14-15. Yet, codefendant Ramos-Rohena failed to log objections to the R&R within the statutory term. He also failed to move for an extension of time. Moreover, even if he had believed in good faith that the Court's granting of an extension of time to Colon-Torres applied to him (it did not), Ramos-Rohena failed to log objections within said term. Instead, a month and a half after his 14-days term expired, Ramos-Rohena filed a one-page motion for joinder on Colon-Torres's objections. This skeletal, two-sentence filing at ECF No. 122 made no showing of good cause for the Court to accept his extremely late filing.

It is black letter law that "[failure to raise objections to the [R&R] waives the party's right to review in the district court...". Davet v. Maccarone, 973 F.2d 22, 31 (1st Cir. 1992)(citing Thomas v. Arn, 474 U.S. 140 (1985)). First Circuit "procedural rules and case law are crystal clear that when... a party fails to file an objection to an R&R, the party has waived any review...." United States v. Maldonado-Pena, 4 F.4th 1, 20 (1st Cir. 2021)(citing United States v. Diaz-Rosado, 857 F.3 89, 94 (1st Cir. 2017).

Because Ramos-Rohena failed to file a timely objection (and by quite a wide margin), "th district court ha[s] [the] right to assume that [he] agreed to the magistrate recommendation."Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144,146 (D.P.R 2003); see Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985), cert, denied, 474 U.S. 1021 (1985). The Court thus DENIES Ramos-Rohena's filing at ECF No. 122 as untimely.

Even if Ramos-Rohena's motion was not denied on the above cited grounds, his filing also fails because it is not specific. As underscored before, he simply moved for "joinder." I novo review only applies to "those portions of the report or specified proposed findings c recommendations to which specific objection is made." Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v. Raddatz, 447 U.S. 667, 6/ (1980) (emphasis added)).

Moreover, his attempt to join his co-defendants' Fourth Amendment request for relief impermissible. Ramos-Rohena cannot simply move for "joinder" on co-defendant Cold] Torres's objections because Fourth Amendment challenges cannot be raised vicarious! Aiderman v. U.S., 394 U.S. 165,174 (1969)("Fourth Amendment rights are personal rights which like some other constitutional rights, may not be vicariously asserted.") Here, both defendan moved to suppress the evidence the government found in each of their bags during separa searches. Under the Fourth Amendment, each co-defendant must move to protect their rights individually. Therefore, Colon-Torres's Fourth Amendment claims cannot be read as a challenge to the search of Ramos-Rohena's bag, and vice versa. To be sure, "(t]here is no necessity to exclude evidence against one defendant in order to protect the rights of another." Aiderman v. U.S., 394 U.S. at 174.

Accordingly, Ramos-Rohena's filing at ECF No. 122 is DENIED given his failure to file specific objections to the R&R. The Court now turns to co-defendant Colon-Torres's objections.

B. Co-defendant Colon-Torres

(i) Standing

In essence, Colon-Torres filed three objections. ECF No. 121. However, before getting there, Colon-Torres must first establish a reasonable expectation of privacy. U.S. v. Lipscomb, 539 F.3d 32,35 (1st Cir. 2008)("[b]efore reaching the merits of a suppression challenge, the defendant carries the burden of establishing that he had a reasonable expectation of privacy...").

Unlike his co-defendant Ramos-Rohena's motion to suppress, Colon-Torres did not submit an affidavit or other declaration to establish an expectation of privacy over the place or items in question. Nor did he testify or submit any document during the evidentiary hearing.^[4]Instead, through counsel, he simply indicated in his motion to suppress (without an affidavit or declaration in support) that he had an "expectation of privacy in the place searched and the items seized" because he "kept his personal belongings" in the bag. ECF No. 61 at 6.

For decades, First Circuit precedent has maintained that "failure to present evidence with respect to such an expectation [of privacy] prevents a defendant from making a claim f(suppression under the Fourth Amendment." U.S. v. Samboy, 433 F.3d 154, 162 (1st Ci 2005)(citing United States v. Lewis, 40 F.3d 1325, 1333 (1st Cir. 1994)). Thus, Colon-Torres objections are fatally wounded from the outset.

Even if the unsupported standing assertions in the motion to suppress sufficed for Fourth Amendment purposes, which this Court is not willing to accept, Colon-Torres's objections 1 the R&R definitely do not.

(ii) No right to a de novo hearing

Colon-Torres requested in general terms a de novo hearing. Contrary to his unsupporte request, he does not have a right to an automatic de novo hearing.

The U.S. Magistrate Judges system was established as the "first echelon of the Feder, judiciary" and an "effective component of a modem scheme of justice...H.R REP. No. 1621 90th Cong., 2d Sess. 11 (1968), reprinted in 3 1968 U.S.C.C.A.N. 4252. Accordingly, it is we settled in this District that courts "generally will not disturb the credibility...