United States v. Mauricio Aguilera , 591 F. App'x 555 ( 2015 )

FILED
UNITED STATES COURT OF APPEALS JAN 27 2015
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10441
Plaintiff - Appellee, D.C. No. 3:09-CR-00988-CRB-2
Northern District of California,
v. San Francisco
MAURICIO AGUILERA,
ORDER
Defendant - Appellant.
Before: D.W. NELSON, McKEOWN, and M. SMITH, Circuit Judges.
Appellant’s petition for rehearing is GRANTED in part and DENIED in
part. Appellant’s petition is granted only with regards to the suppression of
evidence taken from Appellant’s cell phone. The memorandum disposition filed
on August 22, 2014, is withdrawn and is replaced by a memorandum disposition
filed concurrently with this order. Our prior memorandum disposition may not be
cited as precedent to any court. As the petition for rehearing is granted in part, the
petition for rehearing en banc is DENIED as moot. The parties shall have
fourteen days from the date of this order to file a new petition for rehearing en
banc.
IT IS SO ORDERED.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10441
Plaintiff - Appellee, D.C. No. 3:09-CR-00988-CRB-2
v.
MEMORANDUM*
MAURICIO AGUILERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Argued and Submitted May 12, 2014
San Francisco, California
Before: D.W. NELSON, McKEOWN, and M. SMITH, Circuit Judges.
Mauricio Aguilera appeals from his conviction for conspiracy to distribute
five kilograms or more of cocaine. Mr. Aguilera contends that his conviction
suffers from several infirmities, including: 1) that insufficient evidence supports
his conviction for conspiracy; 2) that the evidence submitted to the jury constituted
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
a constructive amendment or fatal variance of the conspiracy charged in his
indictment; 3) that the district court improperly prevented him from asserting his
defense; 4) that counts one and five of the indictment were improperly joined; and
5) that the district court erred in not suppressing images taken from his cell phone.
Because the parties are familiar with the facts and procedural history of these
cases, we repeat only those facts necessary to resolve the issues raised on appeal.
We affirm, except as to the last issue on which we reverse the district court’s denial
of Aguilera’s motion to suppress and remand for an evidentiary hearing.
DISCUSSION
A. Sufficiency of Evidence
To prove the count one conspiracy, the government produced evidence of: 1)
recorded phone calls between Aguilera, who was seeking to purchase cocaine to
distribute to a third party, and Rodriquez, a named co-conspirator, haggling over
the price of cocaine; 2) Aguilera’s recorded admission that he bought drugs from
Rodriquez on credit during the conspiracy period; and 3) extensive telephone
contact between Aguilera and Rodriquez during a period when Rodriquez was
selling drugs to the government’s informant. This evidence is sufficient to prove
Aguilera’s participation in a conspiracy to distribute drugs because the purchase of
drugs on credit is probative of an agreement to distribute. United States v. Mincoff,
574 F.3d 1186, 1193 (9th Cir. 2009) (finding sufficient evidence with one purchase
of drugs and one failed attempt to purchase drugs becasue single transaction on
credit was sufficient evidence of agreement and intent).
B. Fatal Variance or Constructive Amendment
The jury was given a multiple conspiracies instruction, which provides in
relevant part: “If you find that the conspiracy charged did not exist, then you must
return a not guilty verdict, even though you may find that some other conspiracy
existed. Similarly, if you find that any defendant was not a member of the charged
conspiracy, then you must find that defendant not guilty, even though that
defendant may have been a member of some other conspiracy.” Based on the
instructions and the evidence, the jury convicted on the basis of conduct charged in
the indictment, and there was no variance or constructive amendment. See Weeks
v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its
instructions.”).
C. Ability to Present His Defense
Aguilera contends that the district court violated his right to present a
defense by directing defense counsel not to reference the charging language in the
indictment, which was not introduced into evidence at trial. Contrary to his
assertion, however, the defense had ample opportunity to present its multiple
conspiracies defense and did so throughout his closing argument. Further, the jury
received instructions on the multiple conspiracies defense, which defense counsel
noted during his closing argument.
D. Joinder of Counts 1 and 2
Misjoinder requires reversal only “if the misjoinder results in actual
prejudice because it had a substantial and injurious effect or influence in
determining the jury’s verdict.” United States v. Jawara, 474 F.3d 565, 579 (9th
Cir. 2006) (quoting United States v. Terry, 911 F.2d 272, 277 (9th Cir. 1990)).
Aguilera was not prejudiced. Much of the evidence related to count five was
admissible with regard to count one under Federal Rule of Evidence 404(b) to
show knowledge. For the same reasons, the district court acted within its
discretion when it denied Aguilera’s Rule 14 motion. United States v. Lopez, 477
F.3d 1110, 1116 (9th Cir. 2007).
E. Suppression of Cell Phone Images
Aguilera contends that images taken from his cell phone must be suppressed
because the government lacked probable cause to search the phone and because the
authorities “searched” the phone before obtaining a search warrant. We conclude
that the warrant was supported by probable cause. United States v. Celestine, 324
F.3d 1095, 1102 (9th Cir. 2003). However, the government’s actions prior to the
issuance of the September 7, 2010, warrants cause us concern as to whether there
was a constitutional violation.1
On August 27, 2010, Detective Posadas made copies of the files on
Aguilera’s cell phones. Although the parties had an agreement in place to allow
for “mirror images” of the data on the cell phones to be made in the absence of a
warrant,2 Posadas admitted in his trial testimony that he did not make “mirror
images” of the phones and, in fact, that the device used to copy the cell phones’
data is not capable of making a “mirror image.” Additionally, and perhaps most
concerning, Posadas testified that he reviewed the contents of the phone while
copying the data.
In denying the motion to suppress in this case, the district court ruled
without holding an evidentiary hearing that, based on the agreement between the
parties, the government’s search on August 27, 2010, was reasonable. Of course,
“the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” and a
warrantless search “is reasonable only if it falls within a specific exception to the
1
We note that the government did not raise the independent source
exception, see Murray v. United States, 487 U.S. 533, 541 (1988), to the evidence
retrieved from the August 27, 2010, search before the district court and thus has
waived such argument. Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir.
2011).
2
The agreement also provided that “[t]he Government will not examine or
search the copy of the data made pursuant to this agreement unless specifically
authorized by the Court in a future order.”
warrant requirement.” Riley v. California, 134 S. Ct. 2473, 2482 (2014) (internal
quotation marks and citations omitted). Given that the parties had an agreement in
place to provide for certain steps to be taken by the government without a warrant,
it seems clear that if the government’s actions fell under the agreement, there
would be no constitutional violation. However, the trial testimony by Posadas,
which occurred subsequent to the district court’s ruling on the motion to suppress,
illustrates the potential discrepancies between what was provided for in the
agreement and what actually occurred.
The record is limited on this ground as no evidentiary hearing was
conducted; thus, we are left only with Posadas’s trial testimony. Accordingly, we
believe the prudent course of action is to remand this case to the district court to
conduct an evidentiary hearing on this issue. The evidentiary hearing should focus
on whether the government’s actions prior to obtaining the warrant violated the
parties’ agreement and amounted to an unconstitutional search, in particular
whether the method of copying the data was substantively different from making a
“mirror image” of the data and the impact and scope of Posadas’s viewing the
contents of the cell phone as the copy was being made. Therefore, we reverse the
district court’s denial of the motion to suppress and remand for further
proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings.
FILED
United States v. Aguilera, 12-10441 JAN 27 2015
D.W. Nelson, Senior Circuit Judge, concurring in part, dissenting in part:MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I join in Parts A, C, D, and E of the majority disposition. Because I believe
that there was a constructive amendment of the indictment, and the multiple
conspiracies instruction did nothing to cure the problem, I respectfully dissent from
Part B.
The government charged Aguilera with a conspiracy involving an
organization centered around Jorge Rodriguez. At trial, the government introduced
evidence sufficient to prove a conspiracy between Aguilera and Rodriguez, but
also introduced evidence concerning three other individuals: David Morgan, a man
referred to as Chino, and a man referred to as Unidentified Male 4915
(“UM4915”). The government introduced no evidence linking Morgan, Chino, or
UM 4915 to the Rodriguez conspiracy. In the absence of evidence showing an
overall agreement between conspirators, our precedent requires finding that the
government proved two separate conspiracies. See, e.g., United States v. Arbelaez,
719 F.2d 1453, 1457 (9th Cir. 1983). At closing, the government argued, “As to
Count 1, . . . this is an ongoing conspiracy that involved a number of players:
[Rodriguez], Chino, Unidentified Male 4915, David Morgan . . . and Aguilera.
You only need two for a conspiracy. Here we have a minimum of five.” The jury
was therefore incorrectly instructed by the government that it could convict
Aguilera for conspiring with any one of four named individuals where the
indictment only named Rodriguez. Under our precedent, this is a constructive
amendment and reversible error if left uncorrected. E.g., United States v. Ward,
747 F.3d 1184, 1190–91 (9th Cir. 2014). The multiple conspiracies instruction
relied on by the majority, however, did not interpret or explain the scope of the
indictment’s conspiracy charge. The jury was left with only the government’s
incorrect interpretation that the indictment included Morgan, Chino, and UM 4915
as conspirators. We therefore have no way to know if Aguilera was convicted
based on the conspiracy between Aguilera and Rodriguez, which the government
charged and sufficiently proved at trial, or if the conviction was based on evidence
of another conspiracy introduced by the government at trial but not charged in the
indictment. This constitutes reversible error. Id. at 1192. I respectfully dissent.