United States v. Josue Vargas , 915 F.3d 417 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1250
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSUE VARGAS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 CR 579 — Charles R. Norgle, Judge.
____________________
ARGUED NOVEMBER 6, 2018 — DECIDED FEBRUARY 5, 2019
____________________
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
EASTERBROOK, Circuit Judge. Convicted of two cocaine
offenses, 21 U.S.C. §841(a)(1), Josue Vargas has been sen-
tenced to 72 months’ imprisonment. His principal appellate
argument is that the district judge should have suppressed
packages of that drug seized from his truck.
2 No. 18-1250
Vargas rented a parking place for his truck in a lot that
lacked assigned spaces. Agents in Ohio arrested Luis Hueter
as he transported three kilograms of cocaine that, Hueter as-
serted, he had purchased from Vargas the day before at his
parked truck. Hueter described Vargas, the truck, and the
lot. They immediately called agents in Illinois, who entered
the lot by following someone through the gate. Approaching
a truck that met Hueter’s description, the agents in Chicago
sent a photo to the agents in Ohio; Hueter identified the
truck as Vargas’s. A dog was called in and alerted to the
odor of drugs. Agents then broke a window of the truck,
opened the door, and found eight more kilos of cocaine.
Vargas contends that the agents’ and the dog’s entry into
the lot violated his rights. He does not say that it was im-
proper to break into the truck without a warrant; by the time
the agents did this they had probable cause, based on
Hueter’s statements plus confirmation (from the photo and
the dog) that they had the right truck. But, citing Florida v.
Jardines, 569 U.S. 1 (2013), and United States v. Jones, 565 U.S.
400 (2012), Vargas observes that an invasion of property is as
much within the Fourth Amendment as an invasion of pri-
vacy, and he insists that when the agents entered the lot they
lacked probable cause—and a parking lot is not a vehicle, so
the agents could not benefit from the automobile exception
to the warrant requirement.
The argument is a dud, because Vargas neither owned
the parking lot nor had a leasehold interest in any particular
part of it. Vargas was entitled to park his truck in any open
space but not to exclude anyone else. Many other people al-
so parked there, and each could admit third parties. This is
why agents normally do not need probable cause or a war-
No. 18-1250 3
rant to enter the vestibule of a multi-tenant building. See
United States v. Correa, 908 F.3d 208, 221–22 (7th Cir. 2018).
The only person whose property interest the agents in-
vaded was the lot’s owner, who isn’t complaining—and at
all events an invasion of the owner’s property (or privacy)
rights would not entitle Vargas to any remedy. Rights under
the Fourth Amendment are personal; only someone whose
own rights have been transgressed is entitled to relief. See,
e.g., United States v. Payner, 447 U.S. 727 (1980); United States
v. Sweeney, 821 F.3d 893, 900 (7th Cir. 2016). No more need be
said about the search and seizure.
All of Vargas’s remaining arguments concern the conduct
of the trial. According to Vargas, the judge upbraided his
lawyer more often (and more sternly) than the prosecution’s
lawyer and erred in admiiing or excluding evidence. The
district court considered and rejected these arguments when
denying Vargas’s motion for a new trial. 2016 U.S. Dist. LEXIS
99021 (N.D. Ill. July 27, 2016). Vargas hopes that we will find
the contentions stronger than did the district judge.
Vargas presents almost all of his argument in constitu-
tional terms, asserting that the judge violated the Due Pro-
cess Clause of the Fifth Amendment. He mentions Fed. R.
Evid. 613 but in the main ignores both the Federal Rules of
Evidence and the Federal Rules of Criminal Procedure. He
does not maintain that any of these rules is unconstitutional
to the extent it allowed the judge to proceed as he did; in-
stead Vargas bypasses the rules in favor of the Constitution.
Nor does he contend that the judge transgressed any super-
visory rule laid down by the Supreme Court or by this court.
It is, for him, the Constitution or nothing (the invocation of
Rule 613 is so cursory that we need not discuss it), and the
4 No. 18-1250
Constitution at a high level of generality rather than any
concrete rule of criminal procedure to be found in the Con-
frontation Clause or anywhere else.
This is a hopeless strategy, because courts are obliged to
consider statutory and rule-based arguments ahead of con-
stitutional ones. See, e.g., New York Transit Authority v. Beazer,
440 U.S. 568, 582–83 (1979). “Lawyers all too often invoke the
Constitution as if it were a panacea and bypass seemingly
mundane arguments based on statutes and regulations.
Mimicking Gresham’s Law, flabby constitutional generalities
drive out sound legal points.” Magala v. Gonzales, 434 F.3d
523, 526–27 (7th Cir. 2005). “Why counsel should start with
the Constitution rather than the statutes and regulations that
govern [these] proceedings is beyond us. Non-constitutional
arguments always come first; constitutional contentions
must be set aside until their resolution is unavoida-
ble.” Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006).
“Before taking up a constitutional issue, a federal court
should satisfy itself that there is no available non-
constitutional ground of decision.” There to Care, Inc. v.
Commissioner of the Indiana Department of Revenue, 19 F.3d
1165, 1167 (7th Cir. 1994) (citing Spector Motor Service, Inc. v.
McLaughlin, 323 U.S. 101, 105 (1944)). See also BrockeL v. Spo-
kane Arcades, Inc., 472 U.S. 491, 501 (1985).
We illustrate this by considering one of Vargas’s eviden-
tiary arguments—the strongest one, as it seems to us, but
one on which he has missed critical points.
During discovery, Vargas asked the prosecutor to identi-
fy any expert witnesses and describe the nature of the ex-
perts’ testimony. The prosecution made a reciprocal de-
mand. One potential witness identified by the prosecution
No. 18-1250 5
was Joseph Raschke, who would testify about how infor-
mation from cell towers could be used to locate Vargas and
Hueter on the critical days. After the parties agreed to a
stipulation about cell-site evidence, the prosecution told the
judge that it would not call Raschke as a witness in its case-
in-chief. When Vargas tried to call Raschke in his own case,
the prosecutor objected, because Vargas had not disclosed
Raschke as an expert for the defense or described the sub-
jects of his testimony. The judge sustained the objection.
Vargas now asserts that this was absurd—after all, the pros-
ecutor had to know what Raschke would have said on the
stand—and that absurd decisions must be unconstitutional.
Whether the judge erred depends not on the Due Process
Clause but on Fed. R. Crim. P. 16(b)(1)(C), which provides
that at the prosecution’s request any defendant who has
made an equivalent demand for expert disclosure must
“give to the government a wriien summary of any testimo-
ny that the defense intends to use under Rules 702, 703, or
705 of the Federal Rules of Evidence … . This summary must
describe the witness’s opinions, the bases and reasons for
those opinions, and the witness’s qualifications”. Vargas did
not do this about Raschke; the omission is why the district
judge barred Vargas from calling Raschke at trial. And un-
less the defense plans to call an expert, already designated
by the prosecution, for exactly the maiers covered in the
prosecutor’s disclosure, it can’t be called absurd (let alone
unconstitutional) for the judge to enforce the Rule as wriien.
Rule 16(b)(1)(C) thus sinks Vargas’s appellate argument un-
less courts have read this Rule, despite its text, as inapplica-
ble to defendants who want to call witnesses already dis-
closed by the prosecutor.
6 No. 18-1250
We could not find any decision holding that disclosure of
an expert by the prosecutor relieves the defense of a duty to
provide its own disclosure, if the defense wants to call that
expert. Nor could we find any decision in the other direction
(that is, we couldn’t find any decision holding that disclo-
sure by the defense relieved the prosecutor of its duty to dis-
close the testimony that the same expert would give if called
by the prosecutor). The Rule is designed to ensure that each
side knows what an expert’s testimony would cover. See,
e.g., United States v. Bresil, 767 F.3d 124, 127 (1st Cir. 2014);
United States v. Barile, 286 F.3d 749, 758 (4th Cir. 2002). The
possibility that one side will take an expert in a direction
different from the other side’s planned destination affords a
good reason why each must identify the potential “witness’s
opinions, the bases and reasons for those opinions”, no
maier what the other side has disclosed.
Vargas has not addressed any of these subjects, because
his brief does not mention Rule 16. When asked why at oral
argument, Vargas’s counsel asserted that no one pays any
aiention to this Rule, so he did not need to bother. That is a
staggering assertion. The prosecutor paid aiention; that’s
why an objection was made. The district judge enforced Rule
16 by sustaining the objection. And we enforce rules by in-
sisting that counsel address rather than ignore them. “There
is no general constitutional right to discovery in a criminal
case, and Brady [v. Maryland, 373 U.S. 83 (1963)] did not cre-
ate one; as the Court wrote recently, ‘the Due Process Clause
has liile to say regarding the amount of discovery which the
parties must be afforded … .’ Wardius v. Oregon, 412 U.S. 470,
474 (1973).” Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
Sanctions for violating discovery rules also generally are
maiers for the rules or statutes. See Michigan v. Lucas, 500
No. 18-1250 7
U.S. 145 (1991) (judge entitled to exclude evidence after de-
fense failed to comply with a notice obligation). Only close
aiention to Rule 16 might have offered Vargas a chance to
prevail.
None of Vargas’s other arguments requires discussion.
We agree with him that the district judge should have been
more even-handed (at least when the jury could overhear his
admonitions to defense counsel), but neither on that subject
nor any other did the judge violate the Due Process Clause,
which in criminal cases deals with only egregious transgres-
sions of trial rules and decorum. Donnelly v. DeChristoforo,
416 U.S. 637 (1974).
AFFIRMED