United States v. Jonathan Torres-Bonilla , 556 F. App'x 875 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11301
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-20739-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN TORRES-BONILLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 26, 2014)
Before PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Jonathan Torres-Bonilla appeals his convictions and sentence for using an
unauthorized access device, in violation of 18 U.S.C. § 1029(a)(2); possessing 15
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or more unauthorized access devices with intent to defraud, in violation of 18
U.S.C. § 1029(a)(3); and transferring, possessing, or using, without lawful
authority, the means of identification of another, in violation of 18 U.S.C.
§ 1028A(a)(1). We affirm.
I. BACKGROUND
On November 25, 2011, Aventura Police Department, Crime Suppression
Unit Detective Kenneth Sealy was on patrol at the Aventura Mall in Aventura,
Florida. Mall security alerted Detective Sealy to the presence of Torres-Bonilla at
an ATM on the first level. Detective Sealy and his partner, Detective Sean
Bergert, observed Torres-Bonilla remove a plastic card from his right pocket,
swipe his left hand over the back of it, insert the card into the ATM, remove the
card and currency, place it in his left pocket, and then take a different card from his
right pocket to repeat the process. When an individual stood in line behind him,
Torres-Bonilla stopped using the ATM and walked toward a second ATM in the
mall. Torres-Bonilla repeated this same transaction pattern at a second and third
ATM. At a fourth ATM, Torres-Bonilla stood in line behind another person; when
someone got in line behind him, he walked away.
Torres-Bonilla exited the mall and Detectives Sealy and Bergert decided to
make contact with him. Detective Sealy displayed his badge and called out, “Sir,
excuse me. Police.” R at 441. Torres-Bonilla looked back but did not stop.
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Detective Sealy then shouted, “Sir, police. Can I speak with you?” R at 441.
Torres-Bonilla turned around; he again failed to stop. He then ran away at a light
jogging pace and entered the driver’s seat of a minivan. He started to drive away,
but another officer, who was driving an unmarked car, responded and pulled in
front of Torres-Bonilla’s vehicle to block his exit.
Detectives Sealy and Bergert approached the minivan. Detective Sealy
approached the driver’s side of the vehicle and smelled a strong odor of burned
marijuana inside. Torres-Bonilla was in the front seat, his girlfriend was in the
passenger seat, and an infant child was in a car seat in the back seat. Detective
Sealy did not have his weapon drawn, and Detective Bergert could not recall
whether he had drawn his weapon.1 Detective Sealy identified himself as a police
officer, explained he was investigating suspicious behavior he had observed inside
the mall, and requested Torres-Bonilla’s identification. Torres-Bonilla refused.
Detective Sealy again stated his request. When Torres-Bonilla again refused,
Detective Sealy warned that failure to provide identification could result in his
arrest under Florida law. Detective Sealy asked Torres-Bonilla about the ATM
transactions and the smell of marijuana, to which Torres-Bonilla responded the
cards were his and Detective Sealy’s “nose must [have been] broken.” R at 469.
Torres-Bonilla refused to identify himself for a third time. Detective Sealy
1
Torres-Bonilla testified Detective Bergert had drawn his weapon and had pointed it at him,
when the detectives approached Torres-Bonilla’s van.
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arrested him for resisting an officer without violence and for loitering and
prowling, in violation of Florida law. See Fla. Stat. §§ 843.02, 856.021.
Detective Sealy then searched Torres-Bonilla. He found nine Wal-Mart
prepaid debit cards, several ATM withdrawal receipts, and over $1,700 in cash.
All of the cards had an activation label on the back that appeared to have been
pulled back; underneath the label, there was a person’s written name and a
numerical code that appeared to be a personal identification number. The ATM
receipts showed withdrawals in the mall shortly before Torres-Bonilla was
stopped.
Torres-Bonilla’s vehicle was checked for visible weapons and then towed to
the Aventura Police Station. Pursuant to department policy, the officers conducted
an inventory search of the vehicle. The search uncovered additional Wal-Mart
debit cards in Torres-Bonilla’s girlfriend’s purse and in the baby bag, additional
ATM receipts, and about two grams of marijuana within two plastic bags. In total,
the search of Torres-Bonilla and his vehicle yielded 28 Wal-Mart debit cards and
ATM receipts reflecting approximately $4,000 in withdrawals, dated November
23, 2011, through November 25, 2011.
Further investigation revealed the transaction history for the cards. The
transaction history showed the U.S. Treasury had deposited several individuals’ tax
refunds into the accounts associated with the cards. Twenty-eight debit cards were
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loaded with approximately $117,000 in 2010 tax refunds in the names of 28
different victims.
A federal grand jury indicted Torres-Bonilla for using an unauthorized
access device, in violation of 18 U.S.C. § 1029(a)(2); possessing 15 or more
unauthorized access devices with intent to defraud, in violation of 18 U.S.C. §
1029(a)(3); and transferring, possessing, or using, without lawful authority, the
means of identification of another, in violation of 18 U.S.C. § 1028A(a)(1). Prior
to trial, Torres-Bonilla moved to suppress all physical and testimonial evidence
found as a result of his arrest. The district judge heard the evidence and denied the
motions. The judge determined Torres-Bonilla’s arrest and the searches of his
person and his car were based on probable cause.
After a jury trial, Torres-Bonilla was found guilty on all six counts. He
moved for a judgment of acquittal or new trial and argued in part the district judge
had violated his rights under the Confrontation Clause by limiting a portion of his
cross-examination of Detective Sealy. The motion was denied; the district judge
subsequently sentenced Torres-Bonilla to 192 months of imprisonment and 3 years
of supervised release.
Torres-Bonilla raises five arguments on appeal. First, he argues the district
judge erred when he denied his motion to suppress. Second, he asserts the district
judge violated Torres-Bonilla’s right to confront the witnesses against him at trial
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by placing a time limit on his cross-examination of a police officer and by not
allowing him to recall the officer during the defense case-in-chief. In his final
three arguments, Torres-Bonilla contends the district judge clearly erred when he
assessed Sentencing Guideline enhancements for (1) a loss amount of more than
$120,000, (2) the production or trafficking of an unauthorized or counterfeit access
device, and (3) 10 or more victims.
II. DISCUSSION
A. Motion to Suppress
Torres-Bonilla argues the district judge erred when he denied his motion to
suppress. We review the denial of a motion to suppress as a mixed question of law
and fact. United States v. Gordon, 231 F.3d 750, 753-54 (11th Cir. 2000). Rulings
of law are reviewed de novo, while the district judge’s findings of fact are
reviewed for clear error. Id. When considering a ruling on a suppression motion,
all facts are construed in the light most favorable to the prevailing party. Id. at
754.
Officers may stop and briefly detain a person to investigate a reasonable
suspicion of criminal activity, even though probable cause may be lacking. See
Gordon, 231 F.3d at 754 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968)).
When determining whether reasonable suspicion exists, a judge must review the
totality of the circumstances to ascertain whether officers had a particularized and
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objective basis to suspect unlawful conduct. United States v. Arvizu, 534 U.S. 266,
273, 122 S. Ct. 744, 750 (2002). Flight from law enforcement is a relevant factor
in determining whether reasonable suspicion exists. See Gordon, 231 F.3d at 756-
57.
Whereas an investigatory detention requires only reasonable suspicion, a
seizure or arrest must be supported by probable cause. United States v. Virden,
488 F.3d 1317, 1321 (11th Cir. 2007). Probable cause to arrest exists when the
totality of the circumstances warrants a reasonable belief that the suspect has
committed or is committing a crime. United States v. Lindsey, 482 F.3d 1285,
1291 (11th Cir. 2007). Whether a Terry stop has matured into an arrest depends on
several factors, including: (1) the law-enforcement purposes served by the
detention; (2) the diligence with which officers pursued the investigation; (3) the
scope and intrusiveness of the detention; and (4) the duration of the detention.
Virden, 488 F.3d at 1321. Some restriction of freedom of movement alone is not
sufficient to transform a Terry stop into a de facto arrest. United States v. Acosta,
363 F.3d 1141, 1147 (11th Cir. 2004). Similarly, an investigatory stop does not
necessarily ripen into an arrest because an officer draws his weapon. Id.Two detectives with debit-card-fraud training and experience watched
Torres-Bonilla conduct suspicious transactions at multiple ATMs in the same mall.
The detectives observed Torres-Bonilla peel stickers from each ATM card, look
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around to check to see if he was being watched, take a long route from one ATM
to another after seeing uniformed officers walking toward him, and leave ATM
lines when others got in line behind him. Torres-Bonilla also ignored the
detectives’ requests to stop and speak with them as he walked with a quickening
pace toward his van. Construing these facts in the light most favorable to the
government, Gordon, 231 F.3d at 753-54, there was reasonable suspicion that
criminal activity was afoot. See Arvizu, 534 U.S. at 273, 122 S. Ct. at 750;
Gordon, 231 F.3d at 756-57.
Contrary to Torres-Bonilla’s argument, his brief, initial detention—during
which one officer may have drawn his weapon—did not constitute an arrest
requiring probable cause. When the officers first stopped Torres-Bonilla, they did
not place him in handcuffs, take him into custody, or move him or his van to
another location. Cf. Virden, 488 F.3d at 1321 (concluding a seizure which
involved transporting the defendant’s vehicle to a new location two miles away
and, without formally arresting him, handcuffing the defendant and driving him to
another location was “unreasonable absent probable cause because of its scope and
intrusiveness”). Rather, Detective Sealy immediately told Torres-Bonilla why the
officers wanted to speak with him and asked for his driver’s license. See Acosta,
363 F.3d at 1146; Gordon, 231 F.3d at 754. Regardless of whether an officer had
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his weapon drawn, the officers acted quickly in a manner designed to confirm or
dispel their suspicions. See Acosta, 363 F.3d at 1146.
Moreover, there was probable cause to arrest Torres-Bonilla under section
856.021, Florida Statutes, almost immediately after his initial detention began,
once he refused the officers’ request for identification. Under Florida law: “It is
unlawful for any person to loiter or prowl in a place, at a time or in a manner not
usual for law-abiding individuals, under circumstances that warrant a justifiable
and reasonable alarm or immediate concern for the safety of persons or property in
the vicinity.” Fla. Stat. § 856.021(1). “Alarm” is presumed under the second
element of § 856.021 if, when law enforcement appears, the defendant flees or
refuses to identify himself. See State v. Ecker, 311 So.2d 104, 106 (Fla. 1975); see
also Fla. Stat. § 856.021(2) (“Among the circumstances which may be considered
in determining whether such alarm or immediate concern is warranted is the fact
that the person takes flight upon appearance of a law enforcement officer [or]
refuses to identify himself or herself.”). A person’s refusal to respond to a request
for identification is “merely a circumstance to consider in deciding whether the
public safety is threatened,” which “comes into play only after the two elements of
section 856.021 have been established.” Watts v. State, 463 So. 2d 205, 207 (Fla.
1985).
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The officers’ observations of Torres-Bonilla inside the mall satisfied the first
element of section 856.021, because the officers saw him loitering at several
ATMs “in a manner not usual for law-abiding individuals.” See Fla. Stat. §
856.021(1); Ecker, 311 So. 2d at 106. Regarding the second element, the officers
were entitled to be reasonably and justifiably concerned that the property of others
was at risk, based on the combined sum of all of Torres-Bonilla’s suspicious
activities in the mall, his attempts to evade the officers, and his refusal to provide
identification. See Fla. Stat. § 856.021(1), Watts, 463 So. 2d at 207; Ecker, 311
So. 2d at 106. Accordingly, the district judge properly denied Torres-Bonilla’s
motion to suppress.
B. Limiting Cross-Examination
Torres-Bonilla argues the district judge violated his right to confront the
witnesses against him at trial by placing a time limit on his cross-examination of
Detective Sealy and by not allowing him to recall the detective during the defense
case-in-chief. We generally review a district judge’s decision to limit cross-
examination for abuse of discretion. See United States v. Maxwell, 579 F.3d 1282,
1295 (11th Cir. 2009). A district judge’s discretion in limiting the scope of cross-
examination, however, also is subject to the Sixth Amendment. Id.To show a Confrontation Clause violation, a defendant must establish he
was prohibited from engaging in otherwise appropriate cross-examination designed
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to show a witness’s bias, and thereby to expose facts from which jurors could
appropriately draw inferences relating to the witness’s reliability. United States v.
Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007). The fact that a defendant sought
to explore bias on the part of a prosecution witness does not automatically void the
judge’s ability to limit cross-examination. Maxwell, 579 F.3d at 1296. The
defendant is entitled only to an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to the extent, the
defendant might wish. Id. Similarly, a defendant is entitled to cross-examine a
witness only if the information sought to be elicited is relevant. Id.Torres-Bonilla has not established the district judge prohibited him from
recalling Detective Sealy during the defense case-in-chief. Although the judge
initially stated Torres-Bonilla could not recall Detective Sealy, the judge thereafter
instructed counsel for Torres-Bonilla to discuss his proposed line of questioning of
Detective Sealy off the record before calling him again. Counsel agreed but did
not seek to recall Detective Sealy thereafter. 2
Additionally, Torres-Bonilla has not shown the district judge’s limitation of
his previous cross-examination of Detective Sealy during the prosecution’s case
2
We agree that placing time limits on the examination of witnesses is no substitute for limiting
the examination in accordance with the Federal Rules of Evidence. If the examination is proper,
artificial time limits simply have no place in the proceedings. See United States v. McLain, 823
F.2d 1457, 1462 (11th Cir. 1987) (recognizing that a district judge should use care when
choosing to expedite cases, and “[a] case involving a defendant facing a prison sentence is much
more important than an overcrowded court docket”), overruled on other grounds by United
States v. Watson, 866 F.2d 381, 385 n.3 (11th Cir. 1989).
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violated his confrontation rights. Although Torres-Bonilla has identified several
questions he would have asked Detective Sealy, had he been given more time, he
has not explained how the answers to any of his proposed questions would have
exposed bias. His proposed question about what would have happened had he
produced his driver’s license would have been irrelevant. See Maxwell, 579 F.3d
at 1296. His proposed questions about why names and numbers appeared on
stickers on the debit cards found in his possession similarly would have been
inappropriate, because there was no suggestion that Detective Sealy had anything
to do with the information on the cards. While Torres-Bonilla asserts he wanted to
inquire why certain investigative methods were not used, he has not explained how
the answers to any of those questions would have exposed bias or otherwise been
relevant to any contested issues. See id.; Orisnord, 483 F.3d at 1178-79.
Moreover, during Torres-Bonilla’s cross-examination of Detective Sealy,
Torres-Bonilla was able to expose (1) inaccuracies in Detective Sealy’s initial
incident report, (2) Detective Sealy’s failure to acquire video recordings of the
incident, (3) Detective Sealy’s failure to record his conversation with Torres-
Bonilla, and (4) Detective Sealy’s failure to verify Torres-Bonilla personally had
engaged in every transaction associated with all of the debit cards and to obtain the
personal identification numbers associated with each of the cards. Torres-Bonilla
further elicited from Detective Sealy that, although Detective Sealy testified he
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smelled burned marijuana when he first approached Torres-Bonilla’s van, no
marijuana was found during the initial search of the van. Torres-Bonilla asked
Detective Sealy several questions about officers’ activities the day of Torres-
Bonilla’s arrest. He had an adequate opportunity to present the jury with sufficient
evidence with which to evaluate Detective Sealy’s credibility, and Torres-Bonilla
has not shown how additional questioning would have given a reasonable jury a
different impression of Detective Sealy’s credibility. See Maxwell, 579 F.3d at
1296; Orisnord, 483 F.3d at 1178-79. Therefore, Torres-Bonilla has not shown the
district judge abused his discretion when he limited further questioning of
Detective Sealy. 3
C. Sentencing Guidelines Enhancements
Torres-Bonilla argues the district judge clearly erred, when he assessed
Sentencing Guidelines enhancements for (1) a loss amount of more than $120,000,
(2) the production or trafficking of an unauthorized or counterfeit access device,
and (3) 10 or more victims.
1. Loss Determination
We review a district judge’s loss determination for clear error, and his
interpretation of the Sentencing Guidelines de novo. United States v. Barrington,
3
While Torres-Bonilla makes a passing assertion that the judge’s limitation violated his right to
compulsory process, he has failed to advance additional arguments in support of his assertion;
consequently, he has abandoned this issue. See United States v. Woods, 684 F.3d 1045, 1064
n.23 (11th Cir. 2012) (explaining that an appellant abandons an issue if he fails to develop any
argument in support of it in his opening brief).
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648 F.3d 1178, 1197 (11th Cir. 2011). The loss determination need not be made
with precision; the figure need only be a reasonable estimate given the available
information. Id. The amount of loss must be proved by a preponderance of the
evidence; the burden must be satisfied with “reliable and specific evidence.”
United States v. Medina, 485 F.3d 1291, 1304 (11th Cir. 2007) (citation and
internal quotation marks omitted).
Under the Sentencing Guidelines, a defendant’s offense level is increased by
8 levels where the loss exceeds $70,000, but is less than $120,000, and by 10 levels
where the loss exceeds $120,000, but is less than $200,000. See U.S.S.G.
§ 2B1.1(b)(1)(E), (F). In determining a defendant’s offense level based on the
amount of loss, the district judge must take into account the conduct charged and
all relevant actions. United States v. Hoffman-Vaile, 568 F.3d 1335, 1344 (11th
Cir. 2009). In a case involving counterfeit or unauthorized access devices, the
minimum loss amount is $500 per access device. U.S.S.G. § 2B1.1, cmt. n.3(F)(i).
During Torres-Bonilla’s trial, the government presented testimony that: (1)
most of the account-holders associated with each card were born in 1941 or 1942;
(2) most of the account-holders were clients of Compass Health System, where the
mother of Torres-Bonilla’s child worked; and (3) 28 tax returns filed for the year
2010 all resulted in refunds of similar amounts deposited in accounts associated
with prepaid cards, all of which had the same routing number. Torres-Bonilla has
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not shown the district judge clearly erred when he determined the initial tax-refund
deposits associated with the 23 cards for which information was available—
$117,949.69—constituted relevant conduct and was a reasonable estimate of the
losses associated with those 23 cards. See U.S.S.G. §§ 1B1.3(a)(2), 2B1.1 & cmt.
n.3(A); Barrington, 648 F.3d at 1197; Hoffman-Vaile, 568 F.3d at 1344. Because
actual-loss information was not provided for the remaining 5 cards, the district
judge properly imposed the minimum loss amount of $500 per card. See U.S.S.G.
§ 2B1.1, cmt. n.3(F)(i). Based on a total of $120,449.69, the district judge did not
clearly err when he determined the loss amount exceeded $120,000.4
2. Production of an Unauthorized Device
We review a district judge’s application of a sentencing enhancement for
production of an unauthorized access device for clear error. See Barrington, 648
F.3d at 1203. A two-level enhancement applies where the offense involved the
“production or trafficking” of any “unauthorized access device or counterfeit
access device.” U.S.S.G. § 2B1.1(b)(11)(B)(i). The term “access device” includes
account or personal identification numbers that can be used to initiate a transfer of
funds. See 18 U.S.C. § 1029(e); Barrington, 648 F.3d at 1201. An access device
is “counterfeit” if it is forged and “unauthorized” if it has been obtained with intent
4
Because Torres-Bonilla has advanced no additional arguments in support of his passing
assertion that the amount of restitution imposed by the judge also was improper, that argument
also fails. See Woods, 684 F.3d at 1064 n.23.
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to defraud. U.S.S.G. § 2B1.1, cmt. n.9(A) (citing 18 U.S.C. § 1029(e)(2), (3));
Barrington, 648 F.3d at 1201. The term “production” includes duplication.
U.S.S.G. § 2B1.1, cmt. n.9(A); Barrington, 648 F.3d at 1201.
Torres-Bonilla has not shown the district judge clearly erred when he
determined the initial tax-refund deposits associated with 23 of the cards at issue
constituted relevant conduct. In order to obtain the improper tax refunds, it was
necessary to duplicate the Social Security numbers of others with intent to defraud
the United States Treasury. The judge correctly found Torres-Bonilla’s relevant
conduct included the duplication or “production” of Social Security numbers that
were obtained with intent to defraud to be “unauthorized access devices.” See 18
U.S.C. § 1029(e); U.S.S.G. § 2B1.1(b)(11)(B)(i) & cmt. n.9(A); Barrington, 648
F.3d at 1201.
3. Number of Victims
We review a district judge’s calculation of the number of victims for clear
error. United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013). A two-
level sentencing enhancement applies, where the offense involved 10 or more
victims. U.S.S.G. § 2B1.1(b)(2)(A). In cases involving means of identification,
the term “victim” includes “any individual whose means of identification was used
unlawfully or without authority.” Id. § 2B1.1, cmt. n.4(E)(ii); United States v.
Philidor, 717 F.3d 883, 885-86 (11th Cir. 2013) (per curiam). When the Internal
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Revenue Service issues refunds for tax returns listing certain Social Security
numbers, the district judge may infer the Social Security numbers correspond to
actual persons. Philidor, 717 F.3d at 885.
Torres-Bonilla has not shown the district judge clearly erred in determing
the tax refunds associated with 23 cards constituted relevant conduct. In order to
obtain those refunds, it was necessary to duplicate the Social Security numbers of
23 people. See id. Based on the testimony of 3 victims, who testified at Torres-
Bonilla’s trial, and the similarities between all of the relevant tax returns, the judge
was entitled to find the Social Security numbers of the 23 persons whose tax
refunds were deposited on the cards were used without the authority of those
persons. Consequently, the judge correctly concluded Torres-Bonilla’s relevant
conduct included the unauthorized use of the Social Security numbers of 23
persons, and the offense involved 10 or more victims. See U.S.S.G.
§ 2B1.1(b)(2)(A) & cmt. n.4(E)(ii); Philidor, 717 F.3d at 885-86.
AFFIRMED.
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