United States v. Magallon

984 F.3d 1263

UNITED STATES of America, Plaintiff - Appellee

v.Leonardo Antonio MAGALLON, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Jose Ruben Garcia Ortiz, Defendant - Appellant

No. 19-1820

No. 19-1902

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2020

Filed: January 8, 2021

Rehearing and Rehearing En Banc Denied February 16, 2021

Rehearing and Rehearing En Banc Denied March 1, 2021

Kyle J. Essley, Amy L. Jennings, Rachel J. Scherle, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Des Moines, IA, for Plaintiff - Appellee.

Leonardo Antonio Magallon, Pro Se.

Jim K. McGough, MCGOUGH LAW, P.C., Omaha, NE, for Defendant - Appellant.

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.

SMITH, Chief Judge.

In 2018, a grand jury indicted Leonardo Antonio Magallon ("Magallon") and Jose Ruben Garcia Ortiz ("Garcia Ortiz") with conspiracy to distribute 500 grams or more of a mixture and substance containing methamphetamine and at least 50 grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Garcia Ortiz was additionally indicted with possession with intent to distribute at least 500 grams of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Garcia Ortiz conditionally pleaded guilty to the conspiracy charge, and the district court¹ sentenced him to 28 months’ imprisonment. The district court sentenced Magallon to 164 months’ imprisonment after a jury convicted him of conspiracy.

Garcia Ortiz appeals the district court's denial of his motion to suppress evidence,² and Magallon appeals the district court's denials of his motion for a new trial and motion for judgment of acquittal. We affirm.

I. Background

A. Underlying Facts

Following an investigation of Carlos Estrada Camarena ("Estrada Camarena"), a suspected methamphetamine distributor, a grand jury indicted Estrada Camarena, Magallon, and Garcia Ortiz with conspiracy to distribute 500 grams or more of a mixture and substance containing methamphetamine and at least 50 grams of actual methamphetamine. The grand jury also indicted Estrada Camarena and Garcia Ortiz with possession with intent to distribute at least 500 grams of a mixture and substance containing methamphetamine.

In late 2017, a confidential defendant (CD) identified Estrada Camarena to law enforcement as a methamphetamine distributor out of Las Vegas, Nevada. Estrada Camarena was also connected to Darwin Salas ("Darwin"), another methamphetamine distributor out of Des Moines, Iowa. The CD identified Estrada Camarena in a photo. Though the CD had never purchased methamphetamine from Estrada Camarena, he had discussed doing business with him on prior occasions. At law enforcement's direction, the CD made recorded calls to Estrada Camarena to arrange a methamphetamine delivery.

However, because the CD was in jail at the time, he introduced a cooperating source (CS) to Estrada Camarena, telling Estrada Camarena that the CS was a family member who could be trusted to receive delivery of the drugs from Estrada Camarena. Law enforcement ultimately arranged for Estrada Camarena to deliver ten pounds of methamphetamine to the CS in Des Moines. But before commencing the delivery, Estrada Camarena required the CS to pay for the drugs and instructed her to deposit the money into the bank account he provided. Magallon opened that account on February 2, 2018, a day after texting Estrada Camarena to call him. Estrada Camarena gave Magallon's account number to the CS. Law enforcement arranged for two payments ($2,500 each) to be deposited into Magallon's account: one on March 15, 2018, and the other on March 16, 2018. After each transfer, Estrada Camarena notified Magallon, who withdrew the money following each notification.

Magallon purchased a black Infiniti in March 2018. On the same day that he withdrew the first $2,500 deposit, Magallon purchased car insurance for the Infiniti under the name "Jacob Diaz." Additionally, Magallon asked an associate to make him a fake identification card, using his photograph but with the name "Jacob Justin Diaz." On April 2, 2018, prior to leaving for Des Moines, Estrada Camarena texted Magallon, asking if Magallon had $1,000 "[f]or us to leave." Trial Tr., Vol. II, at 236, United States v. Magallon , 4:18-cr-00080-JAJ-CFB-2 (S.D. Iowa 2019), ECF No. 210. Magallon responded that he did not have any money. Estrada Camarena told Magallon he had "put in the order" and "as soon as I get them, outta here." Id. at 236–37.

Estrada Camarena recruited Garcia Ortiz to drive a separate car and follow him and Magallon with the drugs from Las Vegas to Des Moines. Garcia Ortiz testified that late on April 6, 2018, he met Estrada Camarena and Magallon in a parking lot where Estrada Camarena removed a plastic grocery sack containing methamphetamine from the trunk of Magallon's Infiniti and placed it in the trunk of Garcia Ortiz's Lexus. Garcia Ortiz also explained that you "[c]ouldn't really see inside" the grocery bags. Id. at 359. Garcia Ortiz then drove the Lexus containing the drugs to Des Moines. Magallon drove the Infiniti to Des Moines, accompanied by Estrada Camarena. After arrival, Garcia Ortiz parked the Lexus at an apartment complex close to Darwin's residence and joined Estrada Camarena and Magallon there.

1. Surveillance Investigation

On April 8, 2018, Estrada Camarena texted the CS that he was in Des Moines and wanted to meet. Law enforcement established surveillance at the residence of Darwin, who they knew to be one of Estrada Camarena's associates. They observed Estrada Camarena in the driveway and identified him as the same person in the photo the CD identified. Estrada Camarena and the CS arranged to meet within a couple of miles of Darwin's house.

Law enforcement observed a male exit Darwin's residence and depart in a black Infiniti with an Arizona license plate. They observed the Infiniti drive at excessive speeds, make rapid turns, and eventually park in a median before making a U-turn and speeding away. Law enforcement conducted a traffic stop and identified Magallon as the driver. He was alone.

Magallon consented to a search of his vehicle. The search revealed the following: (1) a Wells Fargo check portfolio for the same account into which Estrada Camarena had directed the CS to deposit drug payments, and (2) a fake identification card bearing Magallon's photo but a false name. There, law enforcement also searched his cellular phones.³

2. Post- Miranda⁴ Interview of Magallon

After his arrest, Magallon consented to a post- Miranda interview and provided the following information: Magallon arrived in Des Moines, Iowa, the previous night on April 7, 2018, with his friend Estrada Camarena after driving directly from Las Vegas, Nevada.

Magallon stated that in Des Moines he visited Estrada Camarena's friend, who he described as a "fat bald guy," who owned a soccer team and computer software and music promotion businesses and lived near 17th Street in Des Moines. Final Presentence Investigation Report (PSR) at 6, ¶ 19, United States v. Magallon , 4:18-cr-00080-JAJ-CFB-2 (S.D. Iowa 2019), ECF No. 174. According to law enforcement, Magallon accurately described Darwin. While in detention, Magallon placed several calls, which the prison recorded. In one, he told his girlfriend he was being paid for the trip and that "[t]here was nothing nowhere." Trial Tr., Vol. III, at 435, United States v. Magallon , 4:18-cr-00080-JAJ-CFB-2 (S.D. Iowa 2019), ECF No. 211.

Additionally, he indicated to his girlfriend that she should be cautious about what she said over the phone.

3. Arrest of Estrada Camarena and Garcia Ortiz

Meanwhile, law enforcement continued surveillance at Darwin's residence. Law enforcement believed that Estrada Camarena came to town with Magallon to deliver ten pounds of methamphetamine. In addition, they knew that the suspect's activity focused on Darwin's residence and that the methamphetamine was not in Magallon's vehicle. Law enforcement deduced that the drugs were either at Darwin's residence or in another vehicle coming from the residence.

When law enforcement observed three Hispanic males get into a GMC Sierra and depart from the residence, they conducted an investigative stop of the vehicle. Anthony Salas ("Anthony"), Darwin's younger brother and driver of the GMC; Estrada Camarena; and Garcia Ortiz occupied the vehicle. Law enforcement placed them in separate police vehicles for questioning.

First, they interviewed Anthony, who identified Estrada Camarena and Garcia Ortiz as his older brother's friends. Anthony told Special Agents Tom Smith and Lonny Namanny that Estrada Camarena had a duffle bag at the residence he shared with Darwin. Anthony gave the officers consent to retrieve the duffle bag from the residence. At the residence, officers spoke with Darwin and collected the bag. They then returned to the traffic-stop location with the bag. Anthony also consented to the officers’ search of his cell phone.

In the meantime, law enforcement had handcuffed Garcia Ortiz and placed him in the backseat of a locked patrol car. Because officers first completed conversing with Anthony and Estrada Camarena, law enforcement did not begin to question Garcia Ortiz for nearly an hour. Then, Agent Smith entered the back of the patrol car and questioned Garcia Ortiz. The car's dash camera recorded three different sessions in the interview.

During the first questioning, which lasted approximately 17 minutes, Agent Smith asked Garcia Ortiz for his name, date of birth, social security number, where he was from, and where he lived now. Garcia Ortiz cooperated. Agent Smith also asked Garcia Ortiz for his family members’ names, his ex-girlfriend's name, his phone number, how long Garcia Ortiz had been in Des Moines, and who he knew in Des Moines. In his reply, Garcia Ortiz fabricated a story about hitchhiking to Des Moines and eventually staying with Estrada...