Case: 13-51160      Document: 00512854330         Page: 1    Date Filed: 12/02/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-51160
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 2, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

JUAN CARLOS VENEGAS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No.7:13-CR-61-1


Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Juan Carlos Venegas (“Venegas”) appeals his
conviction for using a cell phone and the Internet to entice a minor to engage
in sexual activity in violation of 18 U.S.C. § 2422(b). Venegas raises several
challenges to his conviction on appeal primarily related to the district court’s
denial of his motion to suppress evidence. We affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-51160
                                       I.
      On the morning of July 2, 2012, the minor victim’s father discovered
Venegas, a 20-year-old male, asleep in bed with M.S., the 13-year-old minor
victim. M.S.’s father called the police. Sheriff’s Deputy Chris Villegas (“Deputy
Villegas”) and another officer arrived at the house to investigate. When he tried
to speak with Venegas, Deputy Villegas discovered that Venegas was hearing-
impaired.
      While conducting his investigation at the residence, Deputy Villegas
picked up Venegas’s cell phone and touched the screen. Deputy Villegas saw
that the cell phone’s cover screen was a picture of Venegas and M.S. together.
      Although Deputy Villegas did not formally arrest Venegas at this time,
Venegas nonetheless agreed to accompany Deputy Villegas to the police
station. Deputy Villegas communicated with Venegas in written English while
waiting for a sign-language interpreter to arrive. Deputy Villegas asked
Venegas in writing whether he could examine the contents of Venegas’s cell
phone. Venegas agreed and gave Deputy Villegas the passcode to access the
phone. The phone contained a photo of M.S. in his underwear, romantic text
messages between Venegas and M.S., and other evidence demonstrating an
intimate relationship between the two.
      After the sign-language interpreter arrived, Deputy Villegas read
Venegas his Miranda rights and interviewed him. During the interview,
Venegas admitted that he had engaged in sexual activity with M.S., and that
he knew M.S. was only thirteen. Deputy Villegas thereafter obtained a warrant
for Venegas’s arrest.
      A federal grand jury charged Venegas with using a cellular telephone
and the Internet to knowingly persuade, induce, and entice an individual who
had not attained the age of 18 years to engage in sexual activity. Venegas
moved to suppress the evidence obtained from his cell phone and the
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                                     No. 13-51160
inculpatory statements he gave during the interview with Deputy Villegas.
The district court denied the motion, and the case proceeded to trial. The jury
found Venegas guilty, and the district court sentenced Venegas to 121 months’
imprisonment. Venegas now appeals. We consider his arguments below.


                                           II.
      Venegas first challenges the district court’s decision to strike Juror
Number 9 and replace him with an alternate juror at the beginning of trial.
After the jury was selected and sworn, but before the government’s opening
statement, Juror Number 9 advised the courtroom security officer that he
recognized Venegas’s parents in the gallery. When questioned by the court,
Juror Number 9 stated that his wife and mother-in-law had an ongoing
business relationship with Venegas’s mother. He also informed the court that
he had met Venegas when Venegas was a child, but that he did not recognize
Venegas until he saw his parents in the courtroom. Juror Number 9 stated
that, while he would try to apply the law evenhandedly, he would have
difficulty being fair to both sides. The district court, over Venegas’s objection,
granted the government’s motion to strike Juror Number 9 for cause.
      Venegas argues that Juror Number 9 never firmly stated that his
relationship with Venegas’s family would render him unable to be fair to both
sides. He emphasizes that Juror Number 9 did not know Venegas’s parents
particularly well. He further contends that the district court’s examination of
Juror Number 9 consisted of “abbreviated and leading questioning.”
      “This court reviews a district court’s decision on a motion to strike a juror
as biased for abuse of discretion only.” 1 The district court did not abuse its



      1 United States v. Cooper, 

, 878 (citing United States v. Hall, 

, 406 (5th Cir. 1998)).
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                                       No. 13-51160
discretion here. Juror Number 9 expressly stated at the outset that he knew
Venegas’s family and did not know if he could be fair. He informed the court,
“[I]t would be hard on me having to follow the law, I mean, whichever way I
went. I mean, I just – it’s just not comfortable for me, honestly.” When the
judge asked whether he was saying that he “couldn’t be fair to the Government
in this case,” Juror Number 9 responded, “Exactly.” The district court therefore
reasonably concluded that Juror Number 9 would be unable to apply the law
evenhandedly. After reviewing the record, we also reject Venegas’s argument
that the district court’s examination of Juror Number 9 was “abbreviated and
leading.”


                                             III.
       Venegas also claims that Deputy Villegas unconstitutionally searched
his phone records on two occasions: once when he looked at the phone’s cover
screen at M.S.’s house, and again at the police station after he obtained
Venegas’s password to unlock the phone. We consider each challenge in turn.


                                              A.
       Shortly after Deputy Villegas arrived at M.S.’s home, he touched the
screen on Venegas’s cell phone, which revealed a digital photo of Venegas and
M.S. posing close together, with their heads touching. Venegas argues that
Deputy Villegas’s examination of the phone’s cover screen amounted to an
unconstitutional search.
       Because Venegas did not raise this particular issue in his pretrial motion
to suppress, we review for plain error. 2 “Such a review requires that there be



       2See United States v. Cabello, 92 F. App’x 983, 985 (5th Cir. 2004) (citing United States
v. Johnson, 

, 392 (5th Cir. 1997)).
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                                       No. 13-51160
error, that is plain, and that affects the defendant’s substantial rights.” 3
Venegas must also show “that the error ‘seriously affects the fairness, integrity
or public reputation of judicial proceedings.’” 4
       The government urges us to conclude that the search was valid because
the phone’s cover screen was within Deputy Villegas’s “plain view” at the time
he arrived at M.S.’s house. Because Deputy Villegas had to manipulate the
phone to view the photograph, however, we are hesitant to conclude that the
photograph was within Deputy Villegas’s plain view. 5
       We need not reach that question, however. Assuming without deciding
that the district court erred by admitting the cover screen photograph into
evidence, that error did not affect Venegas’s substantial rights. The
Government produced abundant evidence of Venegas’s intimate relationship
with M.S., including text messages, Facebook messages, testimony from M.S.’s
parents, Venegas’s admissions to Deputy Villegas, and other photos depicting
M.S. and Venegas together. 6 Most notably, the jury heard evidence that M.S.’s
father discovered Venegas in M.S.’s bed, as well as that Venegas admitted to



       3  United States v. Fernandez, 

, 316 (5th Cir. 2009) (citing United States
v. Rios-Quintero, 

, 215 (5th Cir. 2000)).
        4 

204 F.3d at 215).
        5 Cf. United States v. Zavala, 

, 577 n.5 (5th Cir. 2008) (“The 6323 number

was not plainly visible to Moreman. He had to open the cell phone and manipulate it in order
to retrieve the subscriber number. Thus, Moreman’s testimony regarding the 6323 number
is not admissible under a plain view theory.”).
        6 The police’s ability to obtain this additional evidence of Venegas’s relationship with

M.S. stemmed not from Deputy Villegas’s search of the cover screen, but rather from
Venegas’s presence in M.S.’s bed. In other words, the police would have had ample reason to
investigate Venegas’s relationship with M.S. even if Deputy Villegas had never looked at the
phone’s cover screen. For that reason, this additional evidence did not amount to “fruit of the
poisonous tree.” See United States v. Cotton, 

, 278 (5th Cir. 2013) (quoting United
States v. Rivas, 

, 368 (5th Cir. 1998) (“Under the ‘fruit of the poisonous tree’
doctrine, all evidence derived from the exploitation of an illegal search or seizure must be
suppressed, unless the Government shows that there was a break in the chain of events
sufficient to refute the inference that the evidence was a product of the Fourth Amendment
violation.”)).
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                                  No. 13-51160
kissing and engaging in sexual contact “under the clothing” with M.S. even
though he knew M.S. was only thirteen years old. Thus, we are satisfied that
the district court’s decision to admit the cover screen photograph into evidence
did not affect the verdict. For that reason, the photo’s admission into evidence
did not affect the fairness, integrity, or public reputation of judicial proceedings
either. The district court therefore did not plainly err by admitting this
evidence.


                                        B.
      After transporting Venegas to the police station, Deputy Villegas
searched the password-protected contents of Venegas’s phone pursuant to
Venegas’s consent and found incriminating evidence. Venegas acknowledges
that he gave Deputy Villegas his password as well as express permission to
examine files on his phone. At the police station, Venegas and Deputy Villegas
engaged in the following written exchange:
      Deputy Villegas: Can I look through your cell phone
      Venegas:         Yes, why?
      Deputy Villegas: I am conducting a investigation [sic], looking
                       into what happened this morning and then
                       hopefully you can go.
      Venegas:         Oh ok
      Deputy Villegas: What is the combo to the lock on your cell when
                       you turn on the cell if you try to look in on the
                       phone it ask [sic] for a number combo.
      Venegas:         1122
      Deputy Villegas: Thank you.

      Nevertheless, Venegas argues that Deputy Villegas’s reference to “what
happened this morning” constituted a promise to look only at text messages
sent on the morning of July 2nd. Venegas contends that he consented to the
search solely on the basis of that promise. He claims that Deputy Villegas


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                                      No. 13-51160
unconstitutionally exceeded the scope of that consent by looking at files and
messages from dates prior to July 2nd.
       Venegas challenged the admission of this evidence in his pretrial motion
to suppress. The district court, after a hearing, made factual findings and
denied Venegas’s motion. We accept those findings unless they are clearly
erroneous. 7
       A police officer must generally obtain a warrant before searching digital
information on a suspect’s cellular phone. 8 Of course, no warrant is necessary
if the suspect consents. 9 Although Deputy Villegas did not obtain a warrant
here, Venegas consented to the search.
       Venegas nonetheless argues that Deputy Villegas exceeded the scope of
his consent. 10 The scope of consent is determined by what a “typical reasonable
person [would] have understood by the exchange between the officer and the
suspect[.] The question is not to be determined on the basis of the subjective
intentions of the consenting party or the subjective interpretation of the
searching officer.” 11
       The district court found that Deputy Villegas never asked to look only at
messages sent on the morning of July 2nd, and the written record of the



       7 United States v. Jones, 

, 719 (5th Cir. 2001) (quoting United States v.
Rico, 

, 501 (5th Cir. 1995)).
       8 Riley v. California, 

, 2480-95 (2014).
       9 United States v. Rounds, 

, 338 (5th Cir. 2014) (citing United States v.

Tompkins, 

, 121 (5th Cir. 1997)) (“A search conducted pursuant to consent . . .
remains one of the well-settled exceptions to the Fourth Amendment’s warrant and probable-
cause requirements.”); see also United States v. Truong Son Do, No. 14–CR–0139–CVE, 

, at *8 (N.D. Okla. Oct. 17, 2014) (“[E]ven though not mentioned in Riley, it is
reasonable to assume that police may search a cell phone based on the owner’s voluntary
consent.”).
       10 See United States v. Mendoza-Gonzalez, 

, 666-67 (5th Cir. 2003)

(quoting WAYNE R. LAFAVE, SEARCH & SEIZURE § 8.1(c) (3d ed. 1996 & Supp. 2003) (“When
the government relies upon consent as the basis for a warrantless search, ‘they have no more
authority than they have apparently been given by the consent.’”)).
       11 

(internal quotation marks and citations omitted).

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                                    No. 13-51160
exchange between Venegas and Deputy Villegas supports the district court’s
finding. A reasonable person would have understood Deputy Villegas’s
reference to “this morning” as a request to search for any evidence on the phone
that could explain why Venegas was in M.S.’s bed. Moreover, Venegas
answered “Yes” to Deputy Villegas’s request to search his cell phone before
Deputy Villegas even mentioned he was “looking into what happened this
morning.” This demonstrates that Venegas did not condition his consent on
any temporal limitation to the search. Thus, the district court did not err in
concluding that Deputy Villegas did not exceed the scope of Venegas’s consent.
      Venegas also argues that the district court should not have admitted the
cell phone data into evidence because Deputy Villegas did not read him his
Miranda rights prior to searching the phone. The district court found that
Venegas’s “custodial status teeter[ed] between voluntary presence and
detention” at the time Deputy Villegas searched his cell phone. Even if Deputy
Villegas obtained Venegas’s consent while Venegas was in custody, however,
“Miranda warnings are not required to validate a consent search.” 12 This is
because “[a] statement granting ‘consent to a search . . . is neither testimonial
nor communicative in the Fifth Amendment sense.’” 13 The district court found
that Venegas voluntarily consented to the cell phone search, and the record
supports the district court’s finding. The district court therefore did not err by
admitting the cell phone data into evidence.


                                          IV.
      Venegas argues next that the district court erroneously denied his
motion to suppress his inculpatory statements to Deputy Villegas. Venegas


      12United States v. D’Allerman, 

, 104 (5th Cir. 1983).
      13United States v. Stevens, 

, 242-43 (5th Cir. 2007) (quoting WAYNE R.
LAFAVE ET AL., CRIMINAL PROCEDURE § 3.10 (4th ed. 2004)).
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                                       No. 13-51160
acknowledges that Deputy Villegas administered Miranda warnings both in
written English and with the help of a sign-language interpreter before
questioning him. Nonetheless, he maintains that his stationhouse confession
was neither knowing nor voluntary.
       “[T]he privilege against self-incrimination requires that incriminating
statements obtained during a custodial interrogation be inadmissible as
evidence against a defendant unless the defendant was provided a full and
effective warning of his rights.” 14 “We review a district court’s factual findings
surrounding a motion to suppress statements made in violation of Miranda
under the clear error standard, and review conclusions of law de novo. ‘[T]he
evidence is viewed in the light most favorable to the prevailing party.’” 15
       Venegas first contends that the written Miranda warning was defective
because he did not clearly acknowledge that he was aware of his rights or that
he waived them. The record belies Venegas’s argument. The written Statement
of Miranda Rights contained a section captioned “WAIVER OF RIGHTS” that
states “I have read the above statement of my rights and I understand each of
those rights, and having these rights in mind I waive them and willingly make
a statement.” Venegas placed his printed name and signature directly below
that sentence. The written Miranda statement was not defective in any way. 16
       Venegas also claims that, because he is hearing-impaired, “it was
impossible for [him] to read the Miranda warnings provided in writing . . . and
watch the sign-language interpreter at the same time.” Venegas does not
explain why his inability to simultaneously watch the sign-language



       

. Cain, 

, 100 (5th Cir. 2011) (citing Miranda v. Arizona, 

(1966)).
        15 United States v. Brathwaite, 

, 382 (5th Cir. 2006) (citation omitted)

(quoting United States v. Mendez, 

, 129 (5th Cir. 1994)).
        16 See Duckworth v. Eagan, 

, 203 (1989) (holding that a warning is

sufficient if it “touche[s] all of the bases required by Miranda”).
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                                      No. 13-51160
interpreter would render the warnings ineffective. Indeed, a hearing-impaired
suspect may validly waive his or her Miranda rights even when the
interrogating officer does not employ a sign-language interpreter at all, but
instead administers a written warning alone. 17 As long as the hearing-
impaired suspect comprehends the written warning and voluntarily agrees to
waive his or her rights, the written warning is alone sufficient. 18
       Here, the written warning adequately informed Venegas of his Miranda
rights. The district court found that Venegas understood the written warning,
and the record supports that finding. The district court therefore did not err in
denying Venegas’s motion to suppress.


                                            V.
       Venegas also argues that the district court erred by barring Venegas’s
defense expert, Dr. Gabriel Lomas, from testifying at trial. Dr. Lomas would
have testified that (1) hearing impaired individuals experience the world
differently than persons who are not hearing-impaired; (2) commonly held
beliefs about sign language are actually myths; and (3) “Venegas did not
personally ‘have near the size vocabulary and reading comprehension that
individuals who can hear have.’” The district court ruled that Dr. Lomas’s
testimony would not be relevant to any of the elements of the offense. In the
alternative, the district court concluded that the risk that Dr. Lomas’s




       17  See United States v. Hamberger, No. 07-CR-165, 

, at *1-2, *5, *7-8
(E.D. Wis. Mar. 31, 2008); People v. Brannon, 

, 88 (Mich. Ct. App. 1992); State
v. Perry, 

, 735, 739 (Tenn. Crim. App. 1999).
        18 See Hamberger, 

, at *5, *7-8; 

; see also

State v. Hindsley, 

, 55-58 (Wis. Ct. App. 2000) (finding written warnings
insufficient where (1) defendant was not sufficiently proficient in written English to
understand written Miranda warnings and (2) interrogating officer did not provide an
American Sign Language interpreter).
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                                       No. 13-51160
testimony would confuse and mislead the jury substantially outweighed its
potential probative value.
       “We review the admission or exclusion of expert testimony for an abuse
of discretion. The district court’s ruling will not be disturbed on appeal unless
it is manifestly erroneous.” 19
       The district court did not abuse its discretion in excluding this testimony.
To find Venegas guilty, the jury had to find beyond a reasonable doubt that (1)
he knowingly persuaded, induced, enticed, or coerced a minor to engage in
criminal sexual activity; (2) he used a facility of interstate commerce, such as
a cellular telephone, to commit the offense; (3) he was aware that the minor
was younger than eighteen years of age; and (4) by engaging in sexual activity
with the minor, he could have been charged with a criminal offense under
Texas law. 20 The district court was entitled to conclude that common
misconceptions about sign language and the way a hearing-impaired person
experiences the world are not relevant to any of these elements. Therefore, Dr.
Lomas’s testimony would not have been helpful to the jury.


                                             VI.
       Finally, Venegas argues that the district court erred by failing to respond
to a jury note or disclose its contents to the parties before accepting the jury’s
verdict. The jury note consists of a single sentence: “We have a verdict.” The
trial court did not err by failing to disclose or respond to the jury note, as no
response was necessary.
       AFFIRMED.



       19   United States v. Valencia, 

, 423 (5th Cir. 2010) (internal citations
omitted).
       20   United States v. Rounds, 

, 333 (5th Cir. 2014); see also 18 U.S.C. §
2422(b).
                                              11