JENNIFER WALKER ELROD, Circuit Judge:
Following a motion hearing and bench trial, the district court convicted Hector Tovar of possession with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1), interstate travel in aid of racketeering activity in violation of 18 U.S.C. § 1952, and possession of an unregistered firearm (a short-barrel shotgun) in violation of 26 U.S.C. § 5861(d). Tovar challenges his conviction on three grounds. Specifically, he argues that: (1) double jeopardy bars this case because he was convicted for related conduct in the Eastern District of Pennsylvania; (2) the district court erred in denying his motion to suppress certain evidence and statements obtained during and following a search of his home; and (3) the evidence was insufficient to support his conviction. We AFFIRM.
The relevant criminal conduct
Tovar and Nunez met through a third party in the summer of 2008, while Nunez was in Texas "looking for a source for marijuana." At that meeting, Tovar and Nunez agreed that Tovar would deliver marijuana to Nunez in Pennsylvania; the parties discussed logistics and settled on a price.
Tovar coordinated four specific shipments of marijuana from Texas to Pennsylvania in late 2008 and early 2009. First, in late 2008, Tovar arranged for the delivery of a 300-pound load of marijuana to Nunez in Pennsylvania. Mejia drove the cargo, and Tovar was present at the time of delivery. Second, in December 2008, Tovar rented a truck and U-Haul camper for Mejia to transport another load of marijuana to Nunez. Tovar did not travel to Pennsylvania for that trip. Third, in January 2009, Tovar — accompanied by his family — arrived in Pennsylvania with another load of 200-300 pounds of marijuana. Tovar and his family stayed in the region while Nunez sold the drugs; Nunez then split the sale proceeds with Tovar. Finally, in February 2009, Tovar coordinated with Nunez to deliver another load of marijuana to Pennsylvania, with Mejia acting as the driver. Officials stopped Mejia in Rusk County, Texas, and seized 306.6 pounds of marijuana on February 25, 2009.
Tovar continued to transport drugs (specifically, cocaine) to Nunez in Pennsylvania after Mejia's arrest. He coordinated shipments for Nunez from about March 2009 to August 5, 2009, when Nunez was arrested.
After their arrests, both Mejia and Nunez cooperated with authorities. A special agent obtained an arrest warrant for Tovar and a search warrant for his residence on January 25, 2010. State, local, and federal authorities executed the warrants at approximately 6:00 a.m. the next morning. Officers entered Tovar's residence, placed him in handcuffs, and performed a search of his home. In the course of the search, officers located and seized a shotgun in a closet. Before he received a Miranda warning, Tovar admitted that he had obtained the gun from a cousin for the purpose of self-protection. Officials later determined that the gun was stolen, unregistered, and had been altered, with a pistol grip replacing the stock and a cut-off barrel.
Officers brought Tovar to the station after his arrest. A special agent advised Tovar of his Miranda rights, and Tovar signed a statement of rights form. Tovar then agreed to participate in an interview, in which he told two special agents that he served as a "broker" between Mejia and Nunez. He admitted that he had rented a U-Haul trailer for Mejia to transport marijuana and that he had personally transported marijuana to Pennsylvania in January 2009. Tovar denied any knowledge of the February transaction, during which
Federal grand juries in the Eastern District of Pennsylvania and the Eastern District of Texas indicted Tovar on December 16, 2009 and January 26, 2010, respectively. The Pennsylvania indictment focused on Tovar's cocaine trafficking. It charged Tovar with six counts: one count of conspiracy to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846, four substantive counts of distribution of 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1), and one count of aiding and abetting in violation of 18 U.S.C. § 2. A jury found Tovar guilty of four counts in the Pennsylvania indictment, including the conspiracy count, and the Pennsylvania district court sentenced Tovar to 200 months' imprisonment.
The Texas indictment focused on Tovar's marijuana trafficking. It charged Tovar with four counts:
The District Court for the Eastern District of Texas held a motion hearing and bench trial on November 8, 2011, after Tovar had been convicted and sentenced in the Pennsylvania case.
Tovar made two motions relevant to this appeal. First, he moved to dismiss all counts on double-jeopardy grounds. Second, Tovar moved to suppress evidence seized during the search of his home, as well as statements that he made during and subsequent to the search.
The district court proceeded with Tovar's bench trial before ruling on his motions, reasoning: "I am going to allow the government to put on evidence to meet its burden of persuasion [on Tovar's double-jeopardy motion], which is probably going to be most of the same evidence as to the guilt-or-innocence phase; and I don't see a reason to do it twice." The government presented several witnesses, including Nunez, Mejia, law enforcement officials involved with the investigation of Tovar's case, and a drug analysis expert. The government also offered physical and documentary evidence, including the gun obtained in Tovar's residence, hotel receipts, and records obtained from U-Haul, which
After hearing the evidence, the district court considered Tovar's double-jeopardy and suppression motions. It granted Tovar's double-jeopardy motion to dismiss with respect to Count 1, denied it with respect to Counts 2-4, and denied Tovar's motion to suppress. Ultimately, the district court found Tovar guilty on Counts 2-4 and sentenced him to 90 months' imprisonment followed by a four-year term of supervised release.
Tovar makes three arguments on appeal. First, he asserts that the district court erred in denying his double-jeopardy motion with respect to the non-conspiracy counts (Counts 2-4). Second, Tovar argues that the district court erred in denying his motion to suppress evidence obtained during the search of his home, as well as all statements that he made to law enforcement during and subsequent to the search. Finally, Tovar contends that the evidence is insufficient to sustain his conviction on Counts 2-4. We address each argument in turn.
The Fifth Amendment's Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This constitutional guarantee "protects against a second prosecution for the same offense after conviction." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (internal quotation marks and citation omitted); see United States v. El-Mezain, 664 F.3d 467, 546 (5th Cir.2011), as revised (Dec. 27, 2011), cert. denied, ___ U.S. ___, 133 S.Ct. 525, ___ L.Ed.2d ___ (2012).
The defendant "bears the initial burden of establishing a prima facie claim of double jeopardy." United States v. Deshaw, 974 F.2d 667, 670 (5th Cir.1992) (citation omitted). "If the defendant does so, the burden shifts to the government to demonstrate by a preponderance of the evidence that the indictment charges a crime separate from that for which the defendant previously was placed in jeopardy." Id. (citation omitted).
The longstanding test for determining whether two statutes constitute the "same offense" for double jeopardy purposes arises from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There, the Supreme Court explained that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied ... is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. 180. A court
Here, Tovar argues that the Texas charges address "the same conduct as charged and punished" in the Pennsylvania conspiracy. Because the district court dismissed Count 1 — the Texas conspiracy charge — we need only consider whether the substantive offenses (Counts 2-4: possession with intent to distribute more than 100 kilograms of marijuana, interstate travel in aid of racketeering activity, and possession of an unregistered firearm) are the "same offense" as the Pennsylvania conspiracy under the Blockburger test.
"It is settled law that conspiring to commit a crime is an offense wholly separate from the crime which is the object of the conspiracy." United States v. Threadgill, 172 F.3d 357, 367 (5th Cir.1999); see also United States v. Felix, 503 U.S. 378, 391-92, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992); Deshaw, 974 F.2d at 671. This court has applied this settled law in a host of similarly situated cases. For example, in United States v. Kalish, we considered "whether the double jeopardy clause bars the government from first prosecuting a defendant for conspiracy to commit a crime, and then, in a separate proceeding, charging the same defendant with an underlying substantive offense which may have been the object of that conspiracy." 734 F.2d 194, 196 (5th Cir.1984). We answered no, explaining:
Id. at 198-99. Likewise, in Deshaw, we emphasized that the "overt acts charged in a conspiracy count may also be charged as substantive offenses, for the agreement to do the act is distinct from the act itself." 974 F.2d at 676. We concluded that the Double Jeopardy Clause did not bar "substantive marihuana counts and [interstate travel in aid of racketeering activity]
With these cases in mind, even if Tovar's marijuana possession, interstate travel in aid of racketeering activity, and gun possession were a direct product of the Pennsylvania conspiracy, Tovar's double jeopardy argument fails. The government could have charged Tovar with the otherwise-unprosecuted substantive offenses arising out of the Pennsylvania conspiracy even after it obtained a guilty verdict on the conspiracy charge. Moreover, applying Blockburger, the Pennsylvania conspiracy charge and Counts 2-4 in the Texas district court case depend on proof of different statutory elements. Unlike Counts 2-4 in the Texas case, the Pennsylvania conspiracy charge required the government to show that Tovar made an illegal agreement. Conversely, unlike the Pennsylvania conspiracy charge, Counts 2-4 required the government to prove that Tovar possessed and intended to distribute marijuana, engaged in interstate travel, and possessed an unregistered firearm, respectively.
For these reasons, we affirm the district court's denial of Tovar's motion to dismiss Counts 2-4 on double jeopardy grounds. We turn next to Tovar's suppression arguments.
When reviewing a denial of a motion to suppress evidence, we review factual findings for clear error and the ultimate questions of constitutionality de novo. United States v. Scroggins, 599 F.3d 433, 440 (5th Cir.2010) (citing United States v. Perez, 484 F.3d 735, 739 (5th Cir.2007)). "A finding is clearly erroneous only if the court is left with a definite and firm conviction that a mistake has been committed." Id. (citing United States v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002)). We afford particular deference to factual findings when "denial of the suppression motion is based on live oral testimony... because the judge had the opportunity to observe the demeanor of the witnesses." Id. (quoting United States v. Gibbs, 421 F.3d 352, 357 (5th Cir.2005)). Moreover, we must view the evidence "most favorably to the party prevailing below," unless such view "is inconsistent with the trial court's findings or is clearly erroneous considering the evidence as a
First, Tovar asserts that the search of his home was unlawful because neither the relevant search warrant nor the affidavit on which the warrant was based included sufficient reliable information to establish probable cause, and the Leon good-faith exception did not apply.
We agree with this assessment. The search warrant and accompanying affidavit include far more than mere boilerplate, and afford us no reason to conclude that the magistrate judge abandoned his role in reaching a neutral probable cause determination. Likewise, a well-trained officer could, in good faith, rely on the magistrate judge's probable cause determination. Accordingly, the district court did not err in applying the good-faith exception and denying Tovar's motion to suppress the evidence obtained at his home.
Second, Tovar argues that certain statements he made to the police were inadmissible fruit of a poisonous tree. This argument also fails. "[T]he exclusionary rule prohibits the introduction at trial of all evidence that is derivative of an illegal search, or evidence known as the `fruit of the poisonous tree.'" United States v. Hernandez, 670 F.3d 616, 620-21 (5th Cir.2012) (quoting United States v. Singh, 261 F.3d 530, 535 (5th Cir.2001)). The central question in applying the exclusionary rule is not whether the evidence would have been discovered "but for" a constitutional violation, but rather whether the evidence is derived from exploitation of the illegality. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Scroggins, 599 F.3d at 446 ("This `fruit of the poisonous tree' doctrine is limited to evidence `derived from the exploitation of an illegal search or seizure.'" (quoting United States
Verbal statements, in addition to physical evidence, are subject to the exclusionary rule. Wong Sun, 371 U.S. at 485-86, 83 S.Ct. 407. "[V]erbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest... is no less the `fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." Id. at 485, 83 S.Ct. 407. In determining admissibility, the Supreme Court considers the degree of free will exercised by the defendant and balances the cost of "exclusion [that] would perpetually disable a witness from testifying about the relevant and material facts" against the need to deter unconstitutional conduct in the future. United States v. Ceccolini, 435 U.S. 268, 276-78, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978).
Tovar made statements to the police at two relevant times: (1) during the search of his residence, before he received a Miranda warning,
Assuming arguendo that Tovar's first statements were unlawfully obtained, the central question is whether Tovar's subsequent post-Miranda admissions were voluntary — that is, not a product of coercion or duress — and "sufficiently an act of free will to purge the primary taint." Wong Sun, 371 U.S. at 488, 83 S.Ct. 407; see Brown v. Illinois, 422 U.S. 590, 602-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Tovar does not meaningfully argue that the interview was involuntary,
The district court carefully evaluated each Wong Sun factor, and we agree with its analysis. We will not repeat it here, except to emphasize that the facts surrounding the initial (presumed) misconduct weigh strongly against suppression in this case. There is no evidence that the special agents exploited Tovar's initial, pre-Miranda statements to obtain his later, post-Miranda admissions. Cf. Missouri v. Seibert, 542 U.S. 600, 604, 620-21, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (requiring suppression where police used a two-step strategy to obtain a pre-warning statement, and then a post-warning statement that can be used at trial); Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (noting that defendant's arrest, made without probable cause, had a "quality of purposefulness" in that it was an "expedition for evidence" admittedly undertaken "in the hope that something might turn up").
For these reasons, we affirm the district court's denial of Tovar's motions to suppress. We next consider whether the evidence was sufficient to sustain Tovar's conviction.
When a defendant challenges a bench-trial conviction on sufficiency-of-the-evidence grounds, we focus on "`whether the finding of guilt is supported by substantial evidence, i.e., evidence sufficient to justify the trial judge, as the trier of fact, in concluding beyond a reasonable doubt that the defendant is guilty.'" United States v. Esparza, 678 F.3d 389, 392 (5th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1455, 185 L.Ed.2d 367 (2013) (quoting United States v. Turner, 319 F.3d 716, 720 (5th Cir.2003)). We "should not weigh evidence, nor should [we] determine the credibility of witnesses." Turner, 319 F.3d at 720-21. Rather, we must "view all evidence in the light most favorable to the government and defer to all reasonable inferences drawn by the trial court." Id. (quoting United States v. Mathes, 151 F.3d 251, 252 (5th Cir.1998)).
Tovar challenges the sufficiency of the evidence regarding all of the counts on which he was convicted (Counts 2-4). We consider each in turn.
Count 2 charged Tovar with possession with intent to distribute over 100 kilograms of marijuana in violation of
Tovar argues that the government failed to establish knowing possession. Specifically, he asserts that the "government's case is based solely on the statements of a self-interested cooperating co-defendant and the proximity of Mr. Tovar to the marijuana," which is "insufficient to show knowing possession." Tovar further asserts that the government can prove neither actual possession (because he had no marijuana in his possession at the time of his arrest) nor constructive possession (because the contraband was contained in sealed compartments inside a vehicle, which requires the government to demonstrate additional circumstantial evidence of guilty knowledge).
Tovar cannot succeed in light of the record evidence. The government offered specific testimony from both Nunez and Mejia that Tovar actually possessed the marijuana in question during at least two of the four trips, which the court found credible.
Count 3 charged Tovar with interstate travel in aid of racketeering activity in violation of 18 U.S.C. § 1952.
Tovar makes two cursory arguments to challenge his conviction on Count 3. First, he asserts that "the record is devoid of evidence that anyone traveled the interstates at Mr. Tovar's direction to deliver to him illegal drugs." This argument fails because the record is, in fact, replete with evidence that both Tovar and Mejia — acting at Tovar's direction — traveled from Texas to Pennsylvania to deliver drugs to Nunez. That the delivery was from Tovar, not to him is of no moment to the legal analysis. Second, Tovar argues that "any drug activity did not constitute a continuous course of conduct." This too fails, as the district court's factual findings make it clear that Tovar was associated with an ongoing criminal venture:
Considering the deference owed to the verdict, there is sufficient evidence to sustain Tovar's conviction on this count.
Count 4 charged Tovar with possession of an unregistered firearm (a short-barrel shotgun) in violation of 26 U.S.C. § 5861(d). The elements of this charge are that: (1) Tovar knowingly possessed a firearm, as described in the Texas indictment; (2) that it was a firearm (here, a shotgun with a barrel length of less than 18 inches or an overall length of less than 26 inches); (3) Tovar was aware of the characteristics of the firearm; (4) that the firearm was or could readily be put in operating condition; and (5) that the firearm was not registered to Tovar. See Fed. Jury Prac. & Instr. (Criminal) § 39:24 (6th ed.2013).
Again, Tovar makes two relatively summary arguments. First, he argues that the government failed to show knowing possession of the firearm because the firearm was secreted. But Tovar himself admitted, after he received Miranda warnings, that he obtained the gun from his cousin. This is sufficient to show knowing possession.
Second, Tovar argues that the government failed to show that he knew the firearm had features that brought it within the scope of the statute. We have held that "[w]hen a shotgun's length is immediately apparent and externally visible to anyone observing it, the government's ability to prove knowledge should not be an onerous task." United States v. Reyna, 130 F.3d 104, 109 n. 6 (5th Cir.1997) ("`The fact that a shotgun's length is obvious and apparent is ... a means of proving knowledge.'" (quoting United States v. Edwards, 90 F.3d 199, 205 (7th Cir.1996))). In an unpublished, but persuasive, case, we have held that a factfinder may infer a defendant's knowledge based on the obvious characteristics of a firearm. See, e.g., United States v. Williamson, 170 Fed. Appx. 889, 890 (5th Cir.2006) ("The shotgun was in evidence and could be inspected by the jury. Its barrel was 10 inches long and its overall length was only 16 and one-half inches long. Such characteristics would be readily apparent and externally visible.... A rational jury could have concluded that Williamson knew of the characteristics
Tovar asserts that the government did not meet its burden to prove that he knew about the illegal features of the shotgun (namely, its length). At oral argument, Tovar relied on testimony by government witness Special Agent Christian Bockman, to make his point. According to Tovar, even Special Agent Bockman "did not find [the shotgun's too-short length] to be readily apparent on its face." Counsel said that Special Agent Bockman's testimony indicated that the shotgun barrel appeared to be manufactured, not sawed-off, and that he "had to measure it to determine it was too short." Our review of the trial transcript paints a different picture. Agent Bockman testified that the cut of the barrel was "smooth," such that the gun appeared to have been modified with some kind of machinery (as opposed, for instance, to a hacksaw), but that fact says nothing regarding whether the barrel was obviously too short. Moreover, Special Agent Bockman did not say that he "had to measure" the barrel to see if it was too short. Rather, when asked "did you have an occasion to measure that weapon to make sure that it was not the legal length?" Special Agent Bockman answered, "Yes, sir. When I first got to the ICE office, I measured the weapon; and it was underneath the legal limit." This testimony in no way implies that Special Agent Bockman could not tell that the shotgun barrel was too short with his naked eye; it simply indicates that he measured it to determine precisely how short it was.
The district court heard Special Agent Bockman's testimony and carefully examined the weapon itself. It concluded that the length of the shotgun was immediately apparent:
Considering the district court's reasonable assessment of the visible qualities of the shotgun, Tovar's argument is without merit. See Reyna, 130 F.3d at 109 n. 6. Thus, the evidence was sufficient to convict Tovar on Count 4.
Because Tovar's double-jeopardy, suppression, and sufficiency-of-the-evidence arguments are without merit, we AFFIRM.
We agree.