United States v. Garcia, Case No. 19-1496

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID GARCIA, MIGUEL GARCIA,and JAVIER ROBLES, Defendants-Appellants.

Case No. 19-1496

Case No. 19-1498

Case No. 19-2050

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

October 30, 2020

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0617n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

OPINION

BEFORE: McKEAGUE, GRIFFIN, and BUSH, Circuit Judges.

McKEAGUE, Circuit Judge. Javier Robles, and his nephews, David Garcia and Miguel Garcia, were convicted of conspiracy to possess with intent to distribute and distribution of controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Miguel and Robles were also convicted of conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956.

David and Robles appeal the district court's denial of their motion to suppress the evidence allegedly tainted by an illegal search. Individually, David challenges the sufficiency of the evidence supporting his drug conspiracy conviction and, in the alternative, argues that while the indictment charged him with participating in a single conspiracy, the evidence at trial revealed the existence of two separate conspiracies, resulting in a variance between the charged and proven conspiracies. Miguel contests the district court's denial of his motion to suppress based on his assertion that he did not give voluntary consent to the search, the court's acceptance of an inconsistent jury verdict, and the court's calculation of the laundered funds attributable to him. Robles's only additional argument on appeal is that the district court erred in calculating the total amount of drugs attributable to him.

Finding no error in the district court's decisions, we AFFIRM.

I. Background

The Detroit Drug Enforcement Administration (DEA) began investigating drug trafficking activity in Detroit in June 2015. The DEA learned that a local drug dealer who dealt kilogram levels of heroin in the Detroit area, Edward Foster, was receiving his supply from Robles, who would send him heroin from California via USPS. In November 2016, Detroit DEA agents arrested Kenny Spencer, another local drug dealer, who told agents that he had just received a package from Robles containing a kilogram of heroin. Agents seized the package from Spencer's residence and found 800 grams of heroin.

DEA agents obtained a search warrant for Robles's phone's real-time location data, which showed the phone at what was later confirmed to be Robles's home, 835 Sunset Avenue in Pasadena, California. Agents reviewed data from Robles's phone and found that he had sent Miguel Garcia's name and bank account information to Foster. Agents then learned that the Detroit police had seized $25,000 from Miguel in Detroit in February 2015. That seizure occurred when Detroit police officers received a tip that a California drug dealer was staying at the America's Best Value Inn, outside of Detroit in Dearborn, Michigan. Officers saw a man later identified to be Miguel arrive at the hotel with a bag that was "squared off at the bottom," which was significant because bulk currency is often shaped into a square or rectangle. Later that day, Miguel left the hotel with the bag and took a cab to a Bank of America branch, used the ATM in the lobby, then took the cab to a different Bank of America branch. The officers suspected Miguelwas "structuring" by making small deposits at different ATMs, a tactic often used by drug traffickers, so they conducted a traffic stop. When Miguel got out of the cab, officers saw rolls of money sticking out of his pockets. Officers asked Miguel if he had any weapons or anything illegal on him, and Miguel replied "no." Officers then asked Miguel if they could search him "for everyone's safety," and he said "yes." Officers searched Miguel and found nine rolls of cash totaling $25,000.

On November 14, 2016, Detroit DEA agents flew to Pasadena to arrest Robles and execute search warrants at his personal residence, 835/837 Sunset, and what was believed to be his "stash house" at 2094/2096 Fair Oaks, where David also lived. Robles told agents that he was a "middle man" who sold kilograms of heroin to dealers in Detroit through USPS, including Foster and Spencer, and used Bank of America accounts to collect his money. Agents also arrested David who, at the direction of Robles, sold 1.36 kilograms of methamphetamine to coconspirator Darius Cooper. At the Fair Oaks stash house, agents found approximately 6.1 kilograms of methamphetamine. In David's bedroom at the Fair Oaks house, agents recovered two drug scales and multiple small bags of methamphetamine, heroin, and cocaine packaged for distribution.

On the same day they arrived in Pasadena, before the Detroit DEA agents arrested Robles and David and executed the search warrants, the agents discovered that Homeland Security Investigations (HSI) went to 835/837 Sunset in June 2016 and seized a large amount of narcotics from the residence. The Detroit agents used this information, that HSI had recovered drugs from Sunset a few months ago, in their probable-cause statement for the Sunset and Fair Oaks warrants.

Two years later, in preparation for trial in July 2018, a Detroit DEA agent spoke with an HSI agent who was involved in the June 2016 seizure. The DEA agent learned that HSI had discovered Robles was involved in drug trafficking from an illegal state wiretap, the "Riversidewiretap." While the government did not concede that the Riverside wiretap was illegal, it agreed not to present any evidence at trial that was derived from the wiretap, including the drugs HSI seized in 2016 and two packages seized by USPS in 2015. Defendants argued that because the Sunset and Fair Oaks probable cause affidavits contained information from the Riverside wiretap—the 2016 HSI drug seizure—to support the application for warrants, all evidence seized from the Sunset and Fair Oaks residences must be suppressed.

The district court held a four-day suppression hearing during which it excluded evidence of the 2016 HSI seizure and the USPS packages, but found the rest of the government's evidence admissible under the independent-source doctrine. The district court found that the Sunset and Fair Oaks affidavits still contained probable cause even when omitting the information that HSI seized drugs from the Sunset residence in 2016.

At trial, the jury found David, Miguel, and Robles guilty of conspiracy to possess with intent to distribute and distribution of controlled substances. Additionally, the jury found Robles and Miguel guilty of conspiracy to launder money.

This appeal followed.

II. Discussion

A. Suppression: Independent Source

David and Robles challenge the district court's denial of their motion to suppress the evidence connected to the Riverside wiretap. Their argument is twofold: (1) all the evidence obtained through the Sunset and Fair Oaks search warrants should have been suppressed because it originally stemmed from the Riverside wiretap and (2) the Sunset and Fair Oaks search warrants are invalid because when the tainted information is removed from the affidavits—the drugs HSI seized in 2016 and two packages seized by USPS in 2015—they lack probable cause.

Defendants waived these arguments by conceding, during the suppression hearing, that there was no additional evidence that needed to be suppressed besides what the government had already agreed to exclude, and that when the two pieces of the Riverside wiretap-derived evidence were removed from the Sunset and Fair Oaks affidavits, probable cause still existed. See United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002). However, even assuming that Defendants have not waived these arguments, they still fail on the merits.

When reviewing a district court's ruling on a motion to suppress, this Court reviews "findings of fact for clear error and conclusions of law de novo." United States v. Cochrane, 702 F.3d 334, 340 (6th Cir. 2012) (quoting United States v. See, 574 F.3d 309, 313 (6th Cir. 2009)). When the district court has denied a motion to suppress, this Court reviews the evidence in the light most likely to support the district court's decision. Id.

Under the independent-source doctrine, evidence can be admitted if it was discovered by means "wholly independent of any constitutional violation." United States v. Jenkins, 396 F.3d 751, 757 (6th Cir. 2005) (quoting United States v. Leake, 95 F.3d 409, 412 (6th Cir. 1996)). A court must decide whether, given the illegality of the primary source, the evidence has been discovered "by the exploitation of the illegality or instead by [independent] means sufficiently distinguishable to be purged of the primary taint." Id. (quoting United States v. Leake, 95 F.3d 409, 412 (6th Cir. 1996)). "If the application for a warrant 'contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies . . . .'" United States v. Chapman-Sexton, 758 F. App'x 437, 441 (6th Cir. 2018) (quoting Jenkins, 396 F.3d at 758), cert. denied, 139 S. Ct. 2731 (2019).

At the suppression hearing, the court found that the Detroit DEA did not use any of the Riverside wiretap information in their investigation. The court credited the testimony of severalagents that they did not learn about the Riverside wiretap until July 2015, after they had already arrested Foster and used his phone to identify his source of supply as Robles. The court found that the agents discovered Robles's Fair Oaks and Sunset properties from a confidential source, who told them that a man named Hernandez Milan got his supply from Robles. Agents corroborated this information by setting up a controlled buy with Milan, whom they observed leave the Fair Oaks property and sell half a pound of crystal methamphetamine to the confidential source. The court also found that the DEA learned about the Sunset residence through...