United States v. Wilson Osorio, Jr. ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-3136
________________
UNITED STATES OF AMERICA
v.
WILSON ALBERT OSORIO, JR.,
Appellant
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 5-16-cr-00409-001)
District Judge: Honorable Joseph F. Leeson, Jr.
________________
Submitted under Third Circuit LAR 34.1(a)
on October 2, 2018
Before: SHWARTZ, ROTH and FISHER, Circuit Judges
(Opinion filed: December 20, 2018)
________________
OPINION ∗
________________
ROTH, Circuit Judge:
∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
In this pro se appeal, Wilson Albert Osorio, Jr. challenges several rulings made by
the District Court during his criminal case. For the reasons that follow, we will affirm.
I.
On June 22, 2016, two men robbed the Members 1st Federal Credit Union bank
branch located at 2568 Lititz Pike in Lancaster, Pennsylvania. Surveillance video
captured the robbery, and identifying tattoos and fingerprints led to the arrest of Mario
Onell Cedeno-Roman, Jr. Then, police searched Cedeno-Roman’s phone pursuant to a
search warrant. A forensic analysis revealed, among other things, that three weeks before
the robbery, Cedeno-Roman had sent a text message to a contact identified as “Osorio” in
which he asked, “Papito what happened? Look I am very sick please work with me for
the last time.” 1
On July 6, 2016, Manheim Township and/or Lancaster City police officers
arrested Osorio pursuant to a federal probation warrant. The arrest took place outside the
home of Yesenia Vazquez, Osorio’s former girlfriend. When the officers arrived, Osorio
was inside a minivan parked outside the home. Following Osorio’s arrest, detectives
interviewed Vazquez inside her home. They showed Vazquez a still photograph of the
second robber from the surveillance footage, and Vazquez identified the man as Osorio. 2
Officers also asked Vazquez for permission to search the house. She agreed, signing a
consent form which permitted the detectives to search the residence and the minivan
1
App. at 252.
2
App. at 274–75.
2
parked outside. 3 In the minivan, officers recovered, among many other items, a cell
phone which Vazquez said belonged to Osorio. The officers applied for and secured a
search warrant for the cell phone. The number for the phone was the number listed for
“Osorio” in Cedeno-Roman’s phone. 4
Osorio and Cedeno-Roman were indicted on September 28, 2016, in the Eastern
District of Pennsylvania. The indictment contained only one count, for bank robbery and
aiding and abetting bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a). After a
complex procedural history—in which Osorio filed numerous motions to dismiss, and
suppress, as well as requests to proceed pro se—the District Court held an evidentiary
hearing pertaining to four types of evidence that Osorio sought to suppress. Thereafter,
Osorio filed a motion requesting a Franks hearing, in which he alleged that officers made
material misstatements in the search warrant application to search his cell phone. Then,
on September 8, 2017, following a trial, the jury found Osorio guilty of the charged
offense. Osorio moved for a judgment of acquittal at the close of the government’s case
and again after the jury’s verdict. These motions were denied.
Osorio’s appeal raises seven appellate issues, each of which is addressed below. 5
II.
Osorio’s first contention on appeal is that his arrest was illegal and therefore all
evidence obtained as a result of the arrest must be suppressed. We review the District
3
App. at 277.
4
App. at 128.
5
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
3
Court’s denial of the motion to suppress for clear error on all factual findings and
exercise plenary review of the District Court’s application of law to those facts. 6
Osorio’s argument relies on a theory that, because the arresting officers were municipal
police, they lacked authority to arrest him on the federal probation warrant. However,
because municipal officers are authorized to execute federal arrest warrants, Osorio’s
argument fails. 7
Osorio’s second contention is that police searches of Vazquez’s home and van
were illegal and therefore all evidence obtained during the searches must be suppressed.
Osorio claims that Vazquez did not provide consent to the search, and alternatively, that
if she did provide consent, it was improperly obtained through either duress or coercion.
However, Vazquez signed a search permission form, which was submitted to the District
Court. Moreover, her testimony was that she freely and voluntarily consented to the
searches. Osorio points to no record evidence contradicting this testimony. 8
Osorio’s third contention is that the procedure by which Vazquez identified Osorio
as the man in the surveillance photographs was unnecessarily suggestive, and therefore
all identification evidence should have been suppressed. Osorio cites a variety of cases
that criticized, in one manner or another, the practice of showing a single suspect to a
6
United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
7
See, e.g., United States v. Polito, 583 F.2d 48, 51 (2d Cir. 1978); United States v.
Bowdach, 561 F.2d 1160, 1167–68 (5th Cir. 1977).
8
Osorio also claims, for the first time, that the consent search was illegal because he
initially objected to the search and he had common authority over Vazquez’s property.
Because the issue was not raised in the District Court, it is waived. United States v. Rose,
538 F.3d 175, 182 (3d Cir. 2008). Moreover, there are no facts in the District Court
record regarding this issue.
4
witness for purposes of identification. 9 Such a critique is inapposite here. This is not a
case in which a witness to the crime was presented with photographs of possible suspects,
thereby implicating the concern that “[t]he identification of strangers is proverbially
untrustworthy.” 10 Instead, this case involved police showing surveillance photographs to
a person already familiar with the identified suspect. Testimony revealed that police
showed Vazquez the photographs and asked her if she recognized the person in two of
the photos. Vazquez identified Osorio immediately, according to testimony, and
recognized the shirt he wore in the photos as one that she had purchased for him. 11
Osorio presents no record evidence demonstrating that the identification was
unnecessarily suggestive or unreliable.
Osorio’s fourth appellate contention is that the District Court improperly denied
his request for a Franks hearing. A Franks hearing requires that a defendant make a
substantial preliminary showing that a false statement, necessary to the finding of
probable cause, was knowingly included by the affiant in the warrant affidavit. 12 Osorio
claims that, in an affidavit of probable cause in support of a warrant to search Osorio’s
cell phone, Detective Goss misrepresented the contents of a text message sent from
Cedeno-Roman to Osorio, implying that Osorio was trying to aid and abet Roman.
Osorio contends that, because he never responded to this text, the affidavit was false.
9
See Manson v. Brathwaite, 432 U.S. 98, 116 (1977); Stovall v. Denno, 388 U.S. 293,
302 (1967); Simmons v. United States, 390 U.S. 377, 383 (1968). Note that, in all three
cases, the Supreme Court held that the identification process used by police did not
justify suppressing the relevant evidence.
10
United States v. Wade, 388 U.S. 218, 228 (1967).
11
App. at 47–50.
12
See Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
5
However, the affidavit accurately reports Cedeno-Roman’s statement, without anywhere
stating that Osorio responded to it. Therefore, Osorio’s motion for a Franks hearing was
properly denied.
Osorio’s fifth contention is that the District Court erred by failing to dismiss his
indictment. We review the District Court’s legal conclusions de novo and its factual
findings for clear error. 13 Osorio asserts that his indictment could have been improperly
based on inflammatory statements before the grand jury made by the prosecutor and
agent. These statements pertained to Osorio’s cell phone web browser search history,
which included searches regarding sales of firearms and firearm sound suppressors. The
grand jury transcript shows that there was substantial evidence from which a finding of
probable cause could be made, irrespective of any web search evidence. Therefore,
Osorio has not shown that he was prejudiced by the allegedly inflammatory statements.
Osorio’s sixth contention is that the jury returned an inconsistent verdict because
neither the court nor the jury announced the verdict with regard to aiding and abetting.
Osorio’s single-count indictment charged violation of 18 U.S.C. §§ 2113(a) and 2, as
both a principal and accomplice. The District Court properly instructed the jury that it
must unanimously agree that Osorio was guilty of the offense. The court did not,
however, need to instruct the jury that it must unanimously agree on the theory of
liability, i.e., principal or accomplice. 14 For that reason, the verdict was not inconsistent.
13
United States v. Stock, 728 F.3d 287, 291 (3d Cir. 2013).
14
See, e.g., United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005) (accomplice
liability is not a separate offense, so “the district court [was not] obliged to give a specific
unanimity instruction”).
6
Osorio’s seventh and final contention is that he should not have been subject to a
career offender enhancement at sentencing. 15 The career offender enhancement applies
to those with at least two prior felony convictions for either crimes of violence or
controlled substance offenses. Osorio was previously convicted of bank robbery, which
is a crime of violence. 16 Moreover, he was previously convicted of cocaine delivery,
which is a controlled substance offense. 17 Therefore, Osorio has two qualifying felony
convictions, and the District Court properly applied the career offender enhancement at
sentencing.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
15
See U.S.S.G. § 4B1.1.
16
See id. § 4B1.2(a); United States v. Wilson, 880 F.3d 80, 88 (3d Cir. 2018).
17
See U.S.S.G. § 4B1.2(b).
7