United States v. Fonseca

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LUIS RAUL VICENTE FONSECA, Defendant-Appellant.

No. 22-13152

United States Court of Appeals, Eleventh Circuit

November 3, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cr-20844-RNS-1 Before NEWSOM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Luis Raul Vicente Fonseca appeals his conviction for possession and distribution of child pornography. He argues that the district court erred three times: by denying his motion to suppress evidence obtained from a forensic search of his cellphones, by denying his motions to dismiss on speedy trial grounds, and by denying his motion for a new trial based on the government's failure to provide him Jencks Act material. We find no error in the district court's rulings and therefore affirm Fonseca's conviction.

I.

On December 11, 2019, a Customs and Border Protection officer stopped Luis Fonseca at Miami International Airport as he entered the country via a flight from Panama. Department of Homeland Security officials had earlier begun an investigation of Fonseca after receiving a tip from the National Center for Missing and Exploited Children that somebody had downloaded over one thousand files containing suspected child pornography to a Yahoo account registered in his name. Agents searched Fonseca and his luggage discovering three cellphones.

Fonseca informed the customs officer who took possession of these phones that he was an attorney in Venezuela. But he could not provide any details regarding his law practice, which led the officer to doubt the veracity of this claim. Even so Homeland Security internal directives required customs officers to contact an associate assistant chief counsel or U.S. Attorney before searching information that might be subject to attorney-client privilege. Here though, investigators did not make such contact; they did, however, consult in-house agency counsel about Fonseca's privilege claims.

Invoking its border search authority, a Homeland Security analyst performed an initial forensic search of these cellphones. This initial search was limited to images and video to avoid reviewing any text communications in the phones, which agency counsel had advised was the likeliest place any attorney-client privileged material would be. The search revealed over one thousand child pornography files across the three phones.

Following this initial search, Homeland Security obtained a search warrant and established a privilege filter team in coordination with the U.S. Attorney's Office. No privileged information or any evidence substantiating Fonseca's claim that he was an attorney was ever discovered during the more complete search that followed.

Fonseca was indicted on two counts of possessing and distributing child pornography. Due to numerous trial continuances granted by the district court-some on Fonseca's motion, some on joint motion by Fonseca and the government, and the rest by the court sua sponte-over two years passed between Fonseca's January 2020 arraignment and the beginning of his trial in August 2022. One important factor-in March of 2020, national and international authorities declared that the outbreak of Covid-19 constituted a pandemic, prompting the closure of many institutions. See United States v. Dunn, 83 F.4th 1305, 1307 (11th Cir. 2023). The Chief Judge of the Southern District of Florida issued eleven administrative orders between 2020 and 2021, which automatically continued all jury trials between March 16, 2020, and July 19, 2021. See Administrative Order 2020-18, S.D. Fla.; Administrative Order 2021-65, S.D. Fla. (July 8, 2021). Some jury trials resumed in a limited fashion between July 19 and September 6, 2021. Administrative Order 2021-65, S.D. Fla. (July 8, 2021). The orders also purported to stop the clock on all Speedy Trial Act calculations during this entire period. Id.

Before trial, Fonseca moved to suppress all evidence obtained from the search of his cellphones, arguing that a forensic cellphone search without reasonable suspicion was not justified by the border search exception to the warrant requirement, and that Homeland Security had failed to follow its internal directives and establish a filter team before searching phones that could have contained privileged material. Fonseca also twice moved to dismiss his criminal indictment before trial, arguing that the government had violated the Speedy Trial Act via excessive delay. The district court denied these motions.

After a two-day trial, a jury found Fonseca guilty on both counts. But following the verdict, the government discovered a problem. It had called Special Agent Pablo Llabre, the lead case agent on Fonseca's investigation, to testify regarding the National Center for Missing and Exploited Children tip and the contents of Fonseca's phones. Llabre had also earlier testified before the grand jury, but the government had not provided Llabre's grand jury testimony to the defense before trial, as required by the Jencks Act and the district court's scheduling order. The government provided the missing material to the defense after the conclusion of the trial when it discovered the error. Fonseca moved for a new trial on the grounds that the government's failure to turn over Jencks Act material related to Agent Llabre's testimony had prejudiced Fonseca's defense. The district court denied this motion. Fonseca appeals.

II.

We review a denial of a motion to suppress under a mixed standard of review. We review factual findings for clear error, construing the evidence in the light most favorable to the government, and legal conclusions de novo. United States v. Whyte, 928 F.3d 1317, 1327 (11th Cir. 2019).

We review whether the government violated a defendant's speedy trial rights under either the Speedy Trial Act or the Sixth Amendment under a mixed standard of review. We review de novo the district court's denial of a motion to dismiss based on a violation of the Speedy Trial Act and for clear error the court's factual determinations as to excludable time. Dunn, 83 F.4th at 1314. A district court's decision to grant or deny an ends-of-justice continuance under the Act is reviewed for an abuse of discretion. Id. We review a district court's legal conclusions regarding the constitutional right to a speedy trial under the Sixth Amendment de novo and its factual findings for clear error. United States v. Oliva, 909 F.3d 1292, 1301 (11th Cir. 2018).

We review the denial of a motion for a new trial based on an alleged Jencks Act violation for abuse of discretion. United States v. Naranjo, 634 F.3d 1198, 1206 (11th Cir. 2011). A new trial is not warranted if the Jencks Act violation is harmless. United States v. Jones, 601 F.3d 1247, 1266 (11th Cir. 2010).

III.

A.

Fonseca argues that the district court erred by denying his motion to suppress the evidence obtained from the search of his cellphones at Miami International Airport. He correctly admits that his first argument for suppression-that forensic searches of cellphones at the border still require individualized reasonable suspicion-is foreclosed by this Circuit's precedent. See United States v. Touset, 890 F.3d 1227, 1232-37 (11th Cir. 2018).

Fonseca's second argument is that the DHS agents searching his phones violated the Fourth Amendment by failing to follow their agency's privilege procedures after Fonseca informed them that he was an attorney in Venezuela and that the phones might contain privileged material. But as this Court has explained in the due process context, an agency's failure to follow its own internal operating procedures does not automatically result in a constitutional violation. See Dacostagomez-Aguilar v. U.S. Att'y Gen., 40 F.4th 1312, 1319 (11th Cir. 2022). It is true, as Fonseca argues, that we have previously blessed the use of filter teams as sufficiently protective of Fourth Amendment rights. E.g., In re Sealed Search Warrant & Application for a Warrant by Tel. or Other Reliable Elec. Means, 11 F.4th 1235 (11th Cir. 2021). But that has little bearing on whether DHS's search of Fonseca's cellphones here was constitutional. Our approval of a particular filter procedure does not imply that it is the only way an agency can constitutionally search materials that may be privileged.

As the district court found, the precautions DHS took during the search of Fonseca's phones likely complied with DHS's internal directives for searches implicating purportedly privileged material. But even if they hadn't, Fonseca has not made any further showing that the government violated his Fourth Amendment rights. The government took adequate precautions to safeguard against disclosing privileged material: the agents consulted with in-house counsel about how to handle the phones given privilege concerns; they limited their initial search to only pictures and videos, not text, to avoid discovering any attorney-client communications; and they obtained a warrant and assembled a filter team before more fully examining the phones' contents. And ultimately, no privileged material was ever found. We thus find no error in the district court's denial of Fonseca's motion to suppress.

B.

1.

Fonseca next argues that he was denied a speedy trial in violation of both the Speedy Trial Act and the Sixth Amendment.

We first consider his claim under the Speedy Trial Act, which provides that the trial of a criminal defendant who pleads not guilty must begin within seventy days of either the indictment being filed or the defendant's first appearance before a judicial officer, whichever is later. 18 U.S.C. § 3161(c)(1). If the defendant is not tried within that time, the...