PER CURIAM.
Misael Rodriguez Perez appeals his convictions for possession of 15 or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and for aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, he argues that the district court erred in denying his motion to suppress evidence obtained from a warrantless search of his truck because the search was neither a search incident to arrest nor voluntary. Second, he argues that the district court abused its discretion in failing to apply a standard of manifest necessity before allowing the government to introduce the testimony of a late-disclosed witness. For the reasons that follow, we affirm on both issues.
On October 27, 2016, Detectives Yunieski Arriola and Brandon Ashe, of the Miami-Dade Police Department, while patrolling in an unmarked car, noticed ten trucks, many of which had fuel bladders in their beds, fueling up at a gas station. Because they knew that fuel bladders were illegal in Florida, they entered the gas station. As they did so, they noticed that one of the men fueling his truck, later identified as Yuniet Fuentes, had a firearm in his pocket.
The detectives parked their car and turned on their lights to alert the men to their presence and to avoid a confrontation. Six of the trucks immediately fled. The detectives detained and handcuffed the four men who remained at the gas station—Fuentes, Yenier Martell Rodriguez, Yunier Rodriguez Rivero, and Rodriguez Perez. Before being detained, Fuentes tossed a small brown bag into a grassy area. The officers recovered it; it contained gift cards. Because none of the men spoke English, Detective Arriola asked each of the men, in Spanish, if they consented to searches of their trucks, but he did not mention that they had the right to decline the search. All four men responded affirmatively in Spanish.
The detectives then conducted searches of the trucks. In Rodriguez Perez's truck, Detective Arriola found 16 gift cards. At this point, he called Detective Alberto Roque, who worked in the police department's economic crime bureau. Roque advised Arriola that he was working on a case involving the detainees and requested that the detectives seize the gift cards and release the men so as to not alert them to the nature of his investigation.
As he explained it at the subsequent suppression hearing, Roque's investigation involved the use of stolen credit cards to illegally purchase fuel, which was then resold for profit. The conspirators would obtain credit card information—either by ordering credit cards off of the "black web" or by skimming credit card numbers off gas pumps and making their own credit cards with the stolen information—and then purchase gas. They outfitted their trucks with both legal and illegal gas bladders, some of which could hold up to 1,000 gallons of fuel, and purchased fuel using the stolen credit card information. Then they sold the stolen fuel to third-party buyers.
Rodriguez Perez was indicted nearly two years later, on September 6, 2018, with one count of possession of fifteen or more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and with three counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). The government sought to use the fruits of the October 27, 2016, search of Rodriguez Perez's vehicle, to which he objected by filing a motion to suppress. Accordingly, the district court conducted a suppression hearing. The district court ultimately denied Rodriguez Perez's motion to suppress, concluding that the government had the authority to conduct the search because it had probable cause, because it was a search incident to arrest, or because Rodriguez Perez consented to the search.
The case proceeded to trial, with jury selection scheduled for November 13, 2018, and opening arguments scheduled for November 14, 2018. Both sides filed witness lists on November 9, 2018, pursuant to the district court's directive. On November 13, after jury selection had been completed, the government filed an amended witness list, which included Yunier Rodriguez Rivero, who had been detained along with Rodriguez Perez at the gas station. The government had received a call on the night of November 13 from Rodriguez Rivero's counsel advising the government that their client would be willing to testify. The government immediately informed Rodriguez Perez's counsel.
The next morning, prior to opening statements, the district court heard argument on Rodriguez Perez's motion to exclude the testimony because of the government's late disclosure. The government stated the circumstances of the late disclosure, and stated that it anticipated that the testimony would establish that Rodriguez Rivero knew Rodriguez Perez and that they were involved in a scheme of using fraudulent credit card numbers to purchase fuel and then resell it. Rodriguez Perez argued that the late disclosure of a cooperating witness severely prejudiced him because he was unsure of what Rodriguez Rivero's testimony would be and that it had changed the landscape of the trial. The district court reserved ruling on the motion and invited Rodriguez Perez to raise the issue again if the government actually called Rodriguez Rivero as a witness.
During trial, the government informed the district court that it intended to call Rodriguez Rivero, who would testify that he was involved in a criminal scheme with Rodriguez Perez to use stolen credit card information to illegally purchase fuel that they would then resell to a buyer. Rodriguez Perez again objected to his testimony, arguing that the new testimony morphed the case from one dependent on "very circumstantial evidence" to one with a direct witness—in other words, it changed the nature of the case that the jury had been empaneled for. Although the district court acknowledged that Rodriguez Rivero's testimony "eviscerated" Rodriguez Perez's "entire strategy," it ultimately allowed him to testify—but only if he "testif[ied] about everything" and waived his Fifth Amendment rights.
Rodriguez Rivero ended up testifying as the government indicated he would—that he was involved in a conspiracy with Rodriguez Perez to illegally purchase and then resell fuel for profit. He testified that on October 27, 2016, the police approached and detained him and three of his co-conspirators, including Rodriguez Perez. He said that one of the officers asked him in Spanish if he could search his vehicle and though he wasn't sure if the officer asked the other men the same, he saw the officer approach and speak to the other men in Spanish. On cross-examination, he was asked about two subsequent arrests in March 2017 and August 2018 on similar charges. Following the testimony, Rodriguez Perez moved to strike Rodriguez Rivero's testimony, but the district court denied the motion. The jury ultimately returned a guilty verdict on all counts. Rodriguez Perez moved for a new trial and renewed his motion for a mistrial, citing the late introduction of Rodriguez Rivero. At the sentencing hearing, the district court entertained arguments for a new trial, ultimately rejecting them and sentencing Rodriguez Perez to a 27-month term of imprisonment followed by 3 years of supervised release. Rodriguez Perez timely appealed to us.
First, Perez argues that the district court erred in denying his motion to suppress the evidence found in his truck. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. In most circumstances, police officers must obtain a warrant supported by probable cause to justify a search under the Fourth Amendment.
"One of the well-established exceptions to the probable cause and warrant requirements is a search which is conducted pursuant to voluntary consent."
We review a district court's ruling on a motion to suppress under a mixed standard, reviewing the district court's findings of fact for clear error and its application of the law to those facts de novo.
The district court did not err in finding the search lawful under the Fourth Amendment. We conclude that its determination that Rodriguez Perez consented to the search is supported by the record and does not constitute clear error. We need not reach the district court's conclusion that the search was permissible because the police had probable cause or because it was a search incident to arrest.
Construing all facts in the light most favorable to the party prevailing below, we conclude that the district court could have reasonably concluded that Rodriguez Perez consented to the search. First, Detective Arriola's testimony that he sought, and received permission from, Rodriguez Perez while he was detained was not contradicted at the suppression hearing or at trial. Second, we reject Rodriguez Perez's argument that his consent was not voluntary based on a totality of the circumstances. Here, we find two of our past cases—
In
Similarly, in
Here, based on the totality of the circumstances, we conclude that Rodriguez Perez's consent to the search was voluntary. At the time that Detective Arriola asked for permission to search the truck, there is no clear evidence that either he or Detective Ashe had drawn their weapons. There is also no evidence that either officer threatened any of the men or attempted to coerce them. While we acknowledge that the context of the search was somewhat pressured—the men were detained at a gas station, placed in handcuffs, and apparently did not speak English—we cannot conclude, based on our past precedent in
Next, Rodriguez Perez argues that the district court erred in allowing the government to introduce the testimony of a critical cooperating witness who was disclosed the night before opening arguments were scheduled to commence without a showing of manifest necessity by the government. We note at the outset that Rodriguez Perez's specific argument here is not overwhelmingly clear. He does not appear to argue that the district court erred in denying his motions for a mistrial or a new trial, thereby abandoning those arguments.
The "manifest necessity" requirement is derived from the Supreme Court's caselaw concerning the intersection of mistrials and the Double Jeopardy Clause. Generally, retrials following mistrials do not violate the Double Jeopardy Clause so long as the grant of a mistrial is because of "manifest necessity."
We decline Rodriguez Perez's invitation to apply the "manifest necessity" standard in a context like his—in which the government belatedly attempts to introduce the testimony of a cooperating witness. We conceptualize Rodriguez Perez's argument as essentially arguing that the district court made an incorrect evidentiary ruling, which we review for abuse of discretion.
But even if we read Rodriguez Perez's argument as implying that his substantial rights were violated, we would nonetheless affirm the district court's decision. "Late disclosure of evidence required to be turned over under [Federal Rule of Criminal Procedure] 16 or a standing discovery order necessitates reversal only if it violates a defendant's substantial rights."
In this light, we cannot conclude that the district court abused its discretion. While we have no doubt that the late introduction of Rodriguez Rivero's testimony adversely affected Rodriguez Perez's defense, we do not believe that it "shattered" his defense. Instead, we find it plausible that Rodriguez Perez should have known that Rodriguez Rivero—or one of the other two men who was detained at the same time that they both were—might testify against him. All four men were engaged in the same criminal actions, were all detained at the same time by Officers Arriola and Ashe, and all had evidence connecting them to the crime. Moreover, the government informed the district court that it disclosed to Rodriguez Perez's counsel in September 2018 the information it had related to Rodriguez Rivero, including the fact that he had been indicted along with Rodriguez Perez. In other words, Rodriguez Perez either knew or should have known that substantial other evidence was lurking in the ether.
Accordingly, we affirm as to this issue. Rodriguez Perez cannot demonstrate that the district court's failure to apply the "manifest necessity" standard constituted abuse of discretion. And even if we address the potentially abandoned argument that Rodriguez Perez suffered substantial prejudice because of Rodriguez Rivero's late testimony, we similarly do not think that the district court abused its discretion.