United States v. Juan Rodriguez-Preciado ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4153
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN GABRIEL RODRIGUEZ-PRECIADO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Robert G. Doumar, Senior District Judge. (2:19-cr-00164-RGD-RJK-3)
Submitted: November 22, 2022 Decided: January 9, 2023
Before NIEMEYER and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion, in which Judge
Harris and Judge Motz joined.
ON BRIEF: Melissa J. Warner, LAW OFFICE OF MELISSA J. WARNER, Glen Allen,
Virginia, for Appellant. Jessica D. Aber, United States Attorney, Richmond, Virginia,
Kristin Bird, Special Assistant United States Attorney, Norfolk, Virginia, Megan M.
Montoya, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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NIEMEYER, Circuit Judge:
Juan Gabriel Rodriguez-Preciado was convicted of conspiring to distribute and
distributing large quantities of cocaine in 2019, which he obtained indirectly from a source
in Mexico and provided to a drug distribution organization in Richmond, Virginia, in
violation of 21 U.S.C. §§ 846 and 841. The district court sentenced him to 145 months’
imprisonment.
On appeal, he requests that we vacate the judgment and remand for a new trial,
contending (1) that the district court erred in denying his motion to suppress, which was
based on his claims that the search warrant leading to his arrest was not supported by
probable cause and that he did not, thereafter, voluntarily waive his Miranda rights; (2) that
testimony given by a codefendant about what the organization’s leader had said during the
course of the conspiracy violated his Sixth Amendment right to confront witnesses; and (3)
that evidence impeaching the testimony of a cooperating defendant, disclosed by the
government after trial, required that he be given a new trial.
Having carefully reviewed the record and the briefs of counsel for both parties, we
affirm.
I
In July 2019, law enforcement officers in the Hampton Roads area of Virginia
arrested Jason Gregory for trafficking in cocaine. Following his arrest, Gregory agreed to
cooperate with law enforcement. He described his role in a Richmond drug distribution
organization headed by Adian Barth and included Corey Evans and Derrick Lewis as
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members. Thereafter, Gregory participated in three controlled purchases of cocaine, which
variously involved Barth, Lewis, and Evans, corroborating much of what Gregory had
described to law enforcement about the organization. Gregory also described how the
defendant, Rodriguez-Preciado, was the middle-man between the organization and a
Mexican source, obtaining multi-kilogram quantities of cocaine for the organization. And
law enforcement learned, both from Gregory and their own surveillance, that the
organization’s operations were conducted from various locations, leading them to obtain
search warrants for a car dealership and four houses, including, in particular, Rodriguez-
Preciado’s residence on Laveta Drive in Richmond, which, Gregory said, also served as a
“stash house” for drugs and money.
When executing the Laveta Drive warrant, law enforcement officers arrested
Rodriguez-Preciado, who was in the house at the time the warrant was executed. After
receiving his Miranda warnings, Rodriguez-Preciado agreed to answer questions,
describing how, every two weeks, he had obtained ten kilograms of cocaine for the
organization.
A grand jury indicted four members of the organization — Barth, Evans, Lewis, and
Gregory — as well as Rodriguez-Preciado for conspiracy to distribute and distribution of
cocaine. As relevant here, Rodriguez-Preciado, the defendant in this appeal, filed a motion
to suppress the evidence seized during the execution of the search warrant at Laveta Drive,
including his incriminating statements made after waiving his Miranda rights. He argued
that the warrant was not supported by probable cause and that his waiver was not knowing
and intelligent. The district court conducted a hearing on the motion and then denied it.
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At trial, Gregory and Lewis were among the witnesses who testified on the behalf
of the government, describing the organization and its operation. Following a three-day
trial, the jury convicted Rodriguez-Preciado on one count of conspiracy and one count of
distribution.
After trial, the government became aware of new potentially impeaching evidence
relating to Gregory and promptly disclosed it to Rodriguez-Preciado, who then filed a
motion for a new trial. The district court denied the motion, explaining that because the
evidence was only impeachment evidence and much of Gregory’s evidence was supported
by unimpeachable corroborative evidence, the new evidence did not warrant its granting a
new trial.
This appeal followed.
II
In his motion to suppress, Rodriguez-Preciado argued that the search warrant
leading to his arrest was not supported by probable cause and that his subsequent waiver
of his Miranda rights was not knowing and intelligent.
But at the hearing on the motion, Rodriguez-Preciado affirmatively withdrew his
claim challenging the waiver of his Miranda rights, and the district court accordingly did
not address that issue. Nonetheless, he now argues it on appeal. We conclude, however,
that the issue was waived. When a defendant “identifies an issue, and then explicitly
withdraws it,” he waives the argument, and “when a claim is waived, it is not reviewable
on appeal, even for plain error.” United States v. Robinson, 744 F.3d 293, 298 (4th Cir.
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2014) (quoting United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)). Therefore,
we too will not address the issue.
On the challenge to the support for the search warrant as to the Laveta Drive house,
we have reviewed both the warrant and the matters supporting it and conclude that the
issuing judge was presented with ample evidence to provide probable cause for the issuance
of the warrant. The materials presented to the judge contained extensive historical
evidence of law enforcement’s investigation into the workings of the drug distribution
organization, giving the names of its members and describing its activities, including three
controlled purchases conducted by law enforcement officers. The materials also included
evidence of the role that each of the five locations played in the organization’s operations,
including the Laveta Drive house. In addition, a reliable cooperating member of the
organization told law enforcement that the organization had possession of a property that
it was using as a “stash” house where “illegal contraband and U.S. currency” were
“maintain[ed].” The evidence gathered by law enforcement plausibly showed that the
Laveta Drive house was that stash house. The materials also described law enforcement’s
surveillance of the Laveta Drive house, which revealed that Barth, Evans, and Lewis, the
top-ranking members of the organization, repeatedly frequented the location. Finally, law
enforcement described, based on long experience, how such drug distribution organizations
“commonly use various locations to store illegal narcotics, ledgers, U.S. currency, packing
materials, and other indicia commonly associated with the distribution of narcotics.”
We conclude that this evidence amply demonstrated a fair probability that evidence
of criminal conduct would be found at the Laveta Drive location, and that is all that is
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needed to justify the issuance of a warrant. See United States v. Orozco, 41 F.4th 403, 408
(4th Cir. 2022); United States v. Ortiz, 669 F.3d 439, 444–45 (4th Cir. 2012).
Accordingly, we affirm the district court’s ruling denying Rodriguez-Preciado’s
motion to suppress.
III
Rodriguez-Preciado next contends that codefendant Gregory was improperly
allowed to testify at trial about what Barth, the leader of the organization, had said during
the course of the conspiracy. Rodriguez-Preciado argues that admitting such testimony
denied him the ability to cross-examine Barth, in violation of his rights under the
Confrontation Clause of the Sixth Amendment.
The Confrontation Clause bars out-of-court statements by non-testifying
individuals, but it does so only if the statements were “testimonial.” “Thus, under our
precedents, a statement cannot fall within the Confrontation Clause unless its primary
purpose was testimonial. Where no such primary purpose exists, the admissibility of a
statement is the concern of state and federal rules of evidence, not the Confrontation
Clause.” Ohio v. Clark, 576 U.S. 237, 245 (2015) (cleaned up); see also Crawford v.
Washington, 541 U.S. 36, 68 (2004).
In this case, Gregory, who was not only a member of the drug distribution
organization but also had known Barth for ten years before becoming a member of the
organization, testified to statements made by Barth during the course of the conspiracy
about the organization’s sources of cocaine, his fear of the Mexican cartels, his setting up
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of houses for the organization, and other events and incidents during the conspiracy. There
was no indication that these statements imputed to Barth were made in such a circumstance
that Barth would expect that they would be taken as a substitute for out-of-court testimony.
Thus, because there was no indication that Barth’s statements were testimonial — or,
indeed, that he intended them as a substitute for out-of-court testimony — they did not
implicate the Sixth Amendment’s Confrontation Clause. Ohio v. Clark, 576 U.S. at 245;
Crawford, 541 U.S. at 68. Moreover, because Gregory testified as a coconspirator to
statements made by another coconspirator, admission of his testimony did not violate the
hearsay rule. See United States v. Mathis, 932 F.3d 242, 254–55 (4th Cir. 2019) (holding
that inculpatory statements made by some jointly tried codefendants to cooperating
witnesses fell within the coconspirator exemption of the hearsay rules); see also Fed. R.
Evid. 801(d)(2)(E).
Accordingly, we also reject Rodriguez-Preciado’s challenge to Gregory’s testimony
of Barth’s statements.
IV
Finally, Rodriguez-Preciado contends that the government provided him with
relevant impeachment evidence after the trial and therefore that he should be granted a
new trial. Ten days after the verdict, the government provided him with evidence that an
anonymous person had called the Probation Office and alleged that Gregory had drugs
inside his residence and that his wife possessed a firearm. Rodriguez-Preciado maintains
that this was admissible impeachment evidence because at trial Gregory had testified that
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he had not used drugs since 2006 and that he did not have any firearm. Thus, Rodriguez-
Preciado filed a motion for a new trial based on this newly discovered evidence.
The district court denied the motion, explaining that Rodriguez-Preciado failed to
satisfy the established five-factor test that, if satisfied, could warrant a new trial. See United
States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989). The third factor requires that the new
evidence not be “merely cumulative or impeaching.” Id. While impeachment evidence
thus would not ordinarily warrant a new trial, we have recognized that an exception can be
made in the rare circumstance where the evidence could impeach a witness who was the
government’s only witness and whose testimony was uncorroborated. United States v.
Custis, 988 F.2d 1355, 1359 (4th Cir. 1993). The district court in this case found that the
exception was not demonstrated, pointing to numerous witnesses who testified for the
government and a substantial amount of corroborating evidence, and therefore it denied
Rodriguez-Preciado’s motion.
We agree with the district court that this case clearly does not fall within the Custis
exception. In this case, the government did not rely on just the testimony of Gregory; it
also presented other witnesses and extensive evidence corroborating Gregory’s testimony.
Rodriguez-Preciado thus has failed to demonstrate the requirements of the rare exception
to the rule that impeachment evidence alone does not provide a basis for a new trial.
Accordingly, we affirm the district court’s ruling denying Rodriguez-Preciado’s motion
for a new trial.
* * *
The judgment of the district court is accordingly
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AFFIRMED.
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