United States v. Linarez-Delgado , 259 F. App'x 506 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-19-2007
USA v. Linarez-Delgado
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2876
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2876
UNITED STATES OF AMERICA
v.
HECTOR LINAREZ-DELGADO,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 03-cr-00130-1)
District Judge: Honorable William H. Walls
Submitted Under Third Circuit LAR 34.1(a)
December 14, 2007
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: December 19, 2007)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Hector Linarez-Delgado appeals his conviction for conspiracy to import
approximately 16 kilograms of ecstasy in violation of 21 U.S.C. § 963, conspiracy to
distribute and to possess with intent to distribute ecstasy in violation of 21 U.S.C. § 846,
and four substantive counts of importation of ecstasy in violation of 21 U.S.C. §§ 952,
960(a)(1) and (b)(3), and 18 U.S.C. § 2, as well as the sentence of 170 months of
imprisonment imposed by the District Court. For the reasons that follow, we will uphold
the jury’s verdict and affirm the sentence imposed by the District Court.
Because we write for the parties, we set out only those facts that are pertinent to
our analysis. Linarez-Delgado was the leader of an ecstasy importation conspiracy who
recruited and trained four drug couriers and provided them with instructions, travel
arrangements, and cash for the purchase and importation of ecstasy from Amsterdam.
Following the arrest of one of these couriers, Linarez-Delgado fled the country. When
Linarez-Delgado attempted to re-enter the country, a Customs Officer detained him,
searched his belongings, and discovered a camcorder. The Customs Officer viewed video
footage on the camcorder, which revealed that Linarez-Delgado went by the name
“Sebastian” and thus might be a suspected drug trafficker for whom a warrant had been
issued. Upon confirmation of his identity, Linarez-Delgado was placed under arrest.
Linarez-Delgado raises four issues on appeal. First, he argues that the District
Court improperly denied his motion to suppress the videotape, which, he asserts, was
seized and viewed in violation of the Fourth Amendment. This argument is without
merit. Customs Officers exercise broad authority to conduct routine searches and seizures
for which the Fourth Amendment does not require a warrant, consent, or reasonable
suspicion. See United States v. Glasser, 750 F.2d 1197, 1201 (3d Cir. 1984); United
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States v. Scheer, 600 F.2d 5, 7 (3d Cir. 1979). The Customs Officer’s viewing of the
videotape here was permissible as part of the key function of his job, to ensure that
contraband does not enter the United States. Such searches fall within the broad authority
granted to Customs Officers by statute. 19 U.S.C. § 1582; 19 C.F.R. § 162.6. Data
storage media and electronic equipment, such as films, computer devices, and videotapes,
may be inspected and viewed during a reasonable border search. See United States v.
Borello, 766 F.2d 46, 58-59 (2d Cir. 1985); United States v. Ickes, 393 F.3d 501 (4th Cir.
2005). Therefore, Linarez-Delgado’s argument that the Customs Officer’s viewing of the
content of his camcorder amounted to an unreasonable search fails.
Second, Linarez-Delgado argues that the District Court abused its discretion by
admitting the following testimony: (1) a co-conspirator’s testimony regarding Linarez-
Delgado’s attempts to bribe and threaten him into changing his testimony; (2) testimony
by one co-conspirator that another co-conspirator sold ecstasy for Linares-Delgado; and,
(3) the testimony of a Customs Officer regarding the videotape. When a defendant
objects to the introduction of such evidence under Fed. R. Evid. 404(b), this Court
reviews the District Court’s ruling for an abuse of discretion. See United States v.
Williams, 458 F.3d 312, 319 (3d Cir. 2006). We, therefore, review admission of the first
statement for abuse of discretion. As to his second and third objections, however, we
review the District Court’s rulings for plain error, Fed. R. Crim. P. 52(b), because,
although Linarez-Delgado raised an objection in a pretrial motion in limine which was
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deferred, he received no definitive ruling and failed to renew his objection at trial so as to
preserve the issue. Fed. R. Evid. 103(a).
As to the first item of disputed testimony, prior to trial the government moved
pursuant to Fed. R. Evid. 404(b) to introduce testimony regarding Linarez-Delgado’s
attempts to tamper with witnesses. This testimony was properly admitted under the four-
prong test for admission of Rule 404(b) evidence. Huddleston v. United States, 485 U.S.
681 (1988). First, the evidence had a proper evidentiary purpose because it was
introduced to show Linarez-Delgado’s consciousness of guilt. United States v. Gatton,
995 F.2d 449 (3d Cir. 1993). Second, the evidence was relevant. Third, the probative
value of the evidence was not substantially outweighed by its potential for unfair
prejudice. The testimony served to demonstrate Linarez-Delgado’s consciousness of
guilt, not his propensity to commit crimes. Finally, the District Court properly instructed
the jury to consider the evidence only for the limited purpose for which it was admitted.
As to the admission of co-conspirator testimony regarding ecstacy sales and the
Customs Officer’s very limited testimony as to the contents of the videotape, a review of
the record reveals no abuse of discretion, let alone plain error, by the District Court. The
testimony of the co-conspirator was admitted not under Fed. R. Evid. 404(b), but rather as
intrinsic to the charged conspiracy, see Fed. R. Evid. 404(b), Advisory Committee Note
(1991), and was properly admitted. To the extent that the Customs Officer’s testimony
regarding the content of the videotape can be considered to refer to a prior bad act under
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Rule 404(b), its probative value outweighed any prejudice and it otherwise satisfied the
relevant test for admissibility under Huddleston.
Linarez-Delgado next contends that statements he made to a Customs Officer
when he attempted to enter the United States should have been suppressed because the
Officer did not advise him of his constitutional rights pursuant to Miranda v. Arizona,
384 U.S. 436, 444 (1966). Miranda warnings, however, are required only when a suspect
is subject to custodial interrogation. Miranda, 384 U.S. at 444. Linarez-Delgado freely
presented himself in the territory of the United States when he attempted to enter Puerto
Rico and, therefore, was subject to routine border questioning. See, e.g, United States v.
Ozuna, 170 F.3d 654, 659 (6th Cir. 1999); United States v. Silva, 715 F.2d 43, 46-47 (2d
Cir. 1983). Because Linarez-Delgado was not in custody and his statements were made
in response to a routine border inquiry, Miranda warnings were not required. The District
Court, therefore, properly denied Linarez-Delgado’s motion to suppress.
Finally, Linarez-Delgado claims that his 170-month sentence is unreasonable
because the District Court failed to properly weigh the 18 U.S.C. § 3553(a) factors. We
review the overall sentence for reasonableness. United States v. Grier, 475 F.3d 556, 568
(3d Cir. 2006) (citing United States v. Booker, 543 U.S. 220, 260-63 (2005)). The record
establishes that the District Court properly considered the factors found in 18 U.S.C. §
3553(a), complying with this Court’s decision in United States v. Cooper, 437 F.3d 324
(3d Cir. 2006). Its meaningful consideration of those factors led it to impose a sentence
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65 months below the bottom of the applicable Guideline Range. Linarez-Delgado’s
argument that his sentence is unreasonable fails.
For the foregoing reasons, we will uphold the jury’s verdict and affirm the
sentence imposed in the Judgment and Commitment Order of the District Court.
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