United States v. Daniel Ochoa

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 25, 2019
• Docket: 18-10142
• Status: Published

Opinion

Case: 16-17609 Date Filed: 10/25/2019 Page: 1 of 85

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-17609 ________________________

D.C. Docket No. 1:14-cr-20674-JLK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL OCHOA,

Defendant-Appellant.

________________________

No. 18-10142 ________________________

D.C. Docket No. 1:17-cr-20595-DMM-1

DANIEL OCHOA, Defendant-Appellant. Case: 16-17609 Date Filed: 10/25/2019 Page: 2 of 85

Appeals from the United States District Court for the Southern District of Florida ________________________

(October 25, 2019)

Before ROSENBAUM, GRANT and HULL, Circuit Judges.

HULL, Circuit Judge:

Following two jury trials, Daniel Ochoa appeals his convictions and

sentences for Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2,

knowingly carrying a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(A), and knowingly possessing a firearm and

ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

On appeal, Ochoa argues that the district court erred in: (1) limiting his

cross-examination of FBI Task Force Officer Gerard Starkey; (2) denying his

motion to suppress pre- and post-Miranda1 statements; (3) dismissing Count Three

of the original indictment without prejudice; and (4) denying his motions for

judgment of acquittal in both trials. Ochoa also contends that the cumulative error

doctrine requires that his convictions be vacated and that the district court

procedurally erred in calculating his advisory guidelines range during both of his

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). 2 Case: 16-17609 Date Filed: 10/25/2019 Page: 3 of 85

sentencing proceedings. After review, and with the benefit of oral argument, we

affirm Ochoa’s convictions and sentences.

I. FACTUAL BACKGROUND

We begin by describing the underlying armed robbery offense that gave rise

to the charges against Ochoa, then move on to his arrest and subsequent

questioning by law enforcement. Our description is based on the evidence

presented at trial, as well as testimony and evidence presented during a pre-trial

suppression hearing.

A. The Robbery

On August 15, 2014, an armored Brink’s truck was scheduled to deliver

$30,000 to Check Cashing USA in Miami. The truck was manned by two crew

members, that is, a driver and a “messenger.” The messenger was “responsible for

the contents of the truck,” and was tasked with “get[ting] off the truck and then

go[ing] into stops” to “make a pickup and/or delivery.” Around 9:00 a.m. that day,

in broad daylight, when the messenger, 72-year-old Andres Perez, exited the truck

to deliver the $30,000 to Check Cashing USA, he was confronted by a man who

pointed a .40 caliber handgun 2 at him and said, “This is a holdup.” The man shot

Perez in the leg, took the bag of money, and then ran away.

2 The specific handgun used in the robbery was never recovered. Law enforcement was able to ascertain the caliber of the weapon from the cartridge casing recovered from the scene. 3 Case: 16-17609 Date Filed: 10/25/2019 Page: 4 of 85

B. The Arrest

Thereafter, investigators developed a lead and began to focus on Ochoa as

the perpetrator of the robbery. Once the investigators identified Ochoa as a

suspect, Officer Starkey put together a photo lineup including Ochoa’s driver’s

license photo. Officer Starkey then showed the photo lineup to the victim (Perez)

and two other witnesses to the robbery who were previously interviewed by

investigators. All three witnesses identified Ochoa as the perpetrator of the

robbery. These identifications occurred approximately two weeks after the

robbery.

Officer Starkey obtained an arrest warrant for Ochoa. A SWAT team was

dispatched to arrest Ochoa at his residence. Upon arriving at Ochoa’s residence

around 6:00 a.m., the SWAT team leader, FBI Special Agent Geoffrey Swinerton,

ordered everyone out of the residence. Five people—three males, including

Ochoa, and two females—exited the residence. Agent Swinerton spoke to the

three males, one of whom was later identified as Ochoa’s 15-year-old brother

Angel. Agent Swinerton asked them if there were other individuals in the

residence and if there was anything in the residence that could potentially harm the

SWAT team members who might enter the residence to search it. In particular, he

asked them about “[b]ombs, booby traps, weapons,” and anything else that could

be “harmful.”

4 Case: 16-17609 Date Filed: 10/25/2019 Page: 5 of 85

The residents confirmed that no one else was in the residence and initially

claimed there was nothing dangerous in the residence. Agent Swinerton then

“pressed the question again,” in part because he thought, based on Ochoa’s facial

expression, there might be something in the residence he would want to know

about before sending the members of the team in. In “press[ing] the question,”

Agent Swinerton said something to the effect of, “Listen, you know, we’re going

to end up finding the stuff, but I don’t want anybody to get hurt. You have to let

me know if there’s anything that could hurt my guys before we go in.” At that

point, Ochoa indicated there was a handgun in a drawer in one of the bedrooms.

Agent Swinerton then gave the SWAT team permission to enter the

residence and conduct a safety sweep to confirm that there were no other

occupants. The SWAT team, however, did not search for, or retrieve, a handgun.

C. Ochoa’s Interview

Following his arrest, Ochoa was transported to the FBI field office in Miami,

where Officer Starkey and another FBI special agent interviewed him. The

interview was video and audio recorded. Before reading Ochoa his Miranda rights,

Officer Starkey asked if Ochoa needed to use the restroom or wanted anything to

eat or drink. Officer Starkey then asked a series of biographical questions as part

of the booking process, and to confirm that Ochoa could speak English and was

capable of making a reasonable decision concerning his rights. Officer Starkey

5 Case: 16-17609 Date Filed: 10/25/2019 Page: 6 of 85

then provided Ochoa with an “Advice of Rights” form, which included a recitation

of Ochoa’s Miranda rights. Officer Starkey reviewed each statement on the form

with Ochoa, and Ochoa answered “Yes” when asked whether he understood each

right.

When Officer Starkey reached the final portion of the form, Ochoa

expressed some confusion. The final portion of the form was headed “WAIVER

OF RIGHTS” and stated as follows: “I have read this statement of my rights and I

understand what my rights are. At this time, I am willing to answer questions

without a lawyer present.”

After Officer Starkey read this provision, Ochoa repeatedly asked Officer

Starkey to “hold on,” at which point Officer Starkey read the provision again. At

that point, Ochoa stated he did not “really agree with that one,” and Officer

Starkey responded that he was not “asking if you agree with it.” Ochoa then

stated, “You’re asking me at this time [if] I’m willing to answer questions without

a lawyer. I don’t agree with that.” Ochoa then expressed concern that if he said

yes, that meant he was “willing to cooperate.” Officer Starkey then attempted to

further explain the Waiver of Rights provision as follows:

STARKEY: Can I speak for one minute?

OCHOA: Okay.

STARKEY: Okay. What it means, and it just lays out your right. You have the right to have an attorney here, to be with you during 6 Case: 16-17609 Date Filed: 10/25/2019 Page: 7 of 85

questioning. If that’s your decision, then we’re not going to talk about the case. If you decide yes, I want to talk to you, then you can do that. You can also say yes, at this time, I’m willing to talk to you, later I may change my mind.

OCHOA: Okay, yes, I understand, yes.

STARKEY: Okay. So, is that yes, you’ll speak without an attorney?

OCHOA: Yes.

Ochoa then signed the Advice of Rights form and agreed to continue the interview.

The form shows Ochoa’s initials beside each individual right and his signature at

the bottom.

Notably, Ochoa did not, during the course of the interview, confess to any of

the charged offenses. He did, however, again discuss the presence of a firearm in

the residence. Specifically, Ochoa acknowledged that he had told the “SWAT

people that came in the house” that “[he] had a firearm in [his] room,” but he noted

that he never said the firearm was his. When Officer Starkey asked if there were

any firearms in the house, Ochoa again stated that there was a gun “in a drawer” in

“the last [room] to the right,” though he claimed he could not recall its type or

color. Upon further questioning, Ochoa appeared to confirm that he was referring

to “the room that [he] occup[ies],” agreeing with Officer Starkey’s statement that

“in your room there should only be one gun.” He stated later in the interview,

however, that he had acknowledged only “somewhat” that he “knew that the gun

was in that room in the . . . drawer.” 7 Case: 16-17609 Date Filed: 10/25/2019 Page: 8 of 85

D. The Search of the Residence

While Officer Starkey interviewed Ochoa at the field office, other agents

remained at Ochoa’s residence to secure the area until a search warrant could be

obtained. The search warrant application referenced Ochoa’s pre- and post-

Miranda statements concerning the presence of a gun in the residence. During this

time, some other occupants of the residence, including Ochoa’s younger brother

Angel, remained near the house.

After obtaining the warrant, agents searched the residence, discovering

(1) $12,900 in cash—consisting entirely of $100 bills—wrapped in a bag hidden in

the freezer; (2) large amounts of newly purchased merchandise with the tags still

attached, along with receipts that documented purchases made after the date of the

robbery; (3) firearm accessories, specifically a holster, a large capacity magazine

with .45-caliber ammunition inside of it, and a box containing four rounds of .45-

caliber Hornady brand ammunition; (4) a passport photo and travel documents

indicating Ochoa planned to fly to Nicaragua and that he purchased his plane ticket

after the robbery; (5) a Florida driver’s license bearing Ochoa’s name and

photograph; and (6) several cell phones, along with a receipt confirming Ochoa

had purchased one of the phones three days before the robbery. With the exception

of the bag of cash in the freezer and some of the merchandise, all of these items

8 Case: 16-17609 Date Filed: 10/25/2019 Page: 9 of 85

were recovered from what appeared to be Ochoa’s bedroom, and the firearm

accessories were recovered from a drawer in that bedroom.

The search team also recovered a black Heckler & Koch gun case

(containing a handgun and three loaded magazines) and a stray bullet from the

yard. While waiting for the warrant, the agents assigned to secure the area allowed

one of the residents—Ochoa’s brother, Angel—to go to the side yard and use the

restroom out of the agents’ line of sight. When Angel took an unusually long time,

one of the agents, Special Agent Matthew Carpenter, walked around the residence

to find him. Agent Carpenter observed Angel coming back from the far side of the

residence, and when Agent Carpenter went to examine the area, he discovered a

.45-caliber bullet that did not appear to have been “outside for any length of time,”

and a black gun case leaning up against the residence. Agent Carpenter also

checked the back door and found that it was unlocked. Upon inspecting the case,

agents discovered it contained a .45-caliber handgun and three loaded magazines.3

3 In the district court, Ochoa also challenged the admissibility of these items, arguing they were the fruit of an unlawful second security sweep conducted by the agents who were securing the property. However, on appeal, Ochoa does not argue that this evidence should have been suppressed, at least not on the ground that the agent was acting improperly when he initially observed the bullet and gun case outside the residence. Rather, Ochoa focuses solely on his verbal statements made to the SWAT team and to Officer Starkey during his interview concerning the alleged presence of a gun inside the residence and any evidence subsequently obtained as a result of those statements.

9 Case: 16-17609 Date Filed: 10/25/2019 Page: 10 of 85

II. PRE-TRIAL PROCEEDINGS

A grand jury returned a superseding indictment charging Ochoa with Hobbs

Act robbery (Count One), knowingly carrying a firearm during and in relation to,

and knowingly possessing that firearm in furtherance of, the crime of violence

charged in Count One (Count Two), and knowingly possessing a firearm and

ammunition while he was a convicted felon (Count Three).

The district court granted Ochoa’s unopposed motion to sever Count Three

from Counts One and Two.

A. Ochoa’s Motions to Suppress

Prior to trial, Ochoa filed two motions to suppress. First, he sought to

suppress any testimony or evidence concerning the three witnesses’ identifications

of him based on the photo lineups. A magistrate judge recommended denying the

motion to suppress, and when Ochoa did not file any objections to the magistrate

judge’s report and recommendation, the district court denied the motion.4

Next, Ochoa moved to suppress the statements he made to the SWAT team

leader at the residence immediately following his arrest, as well as the statements

he made to Officer Starkey during his interview at the FBI field office. He argued

that his statements to the SWAT team leader about the gun in the residence were

the result of questioning that occurred after his arrest but before he was informed

4 On appeal, Ochoa does not challenge the district court’s denial of this motion. 10 Case: 16-17609 Date Filed: 10/25/2019 Page: 11 of 85

of his Miranda rights, and there was no applicable exception to Miranda. As to the

statements he made during the interview at the FBI field office, Ochoa argued he

had clearly communicated that he did not wish to speak with investigators without

a lawyer present, but the questioning continued.

A magistrate judge conducted an evidentiary hearing, during which

Agent Swinerton, Officer Starkey, and Agent Carpenter (who first discovered the

stray bullet and black gun case outside the residence) testified. Agent Swinerton

and Officer Starkey described their respective interactions with Ochoa as detailed

above, and the magistrate judge reviewed the video of Ochoa’s interview.

At the conclusion of the testimony from Agent Swinerton and Officer

Starkey, the magistrate judge stated that, even excising the pre- and post-Miranda

statements from the warrant application, there was “ample probable cause to have

issued the warrant” to search the residence. As a result, any evidence seized

pursuant to the valid search warrant was covered by the independent source

doctrine, and the only remaining issue was the admissibility of the statements

themselves, which the magistrate judge addressed in a written report and

recommendation (“R&R”).

In that R&R, the magistrate judge recommended that the district court deny

Ochoa’s motion to suppress his statements. First, the magistrate judge found that

Ochoa’s pre-Miranda statements to Agent Swinerton made at the scene of his

11 Case: 16-17609 Date Filed: 10/25/2019 Page: 12 of 85

arrest to Agent Swinerton were covered by the public safety exception and thus

were not subject to suppression, notwithstanding the absence of Miranda warnings.

Second, the magistrate judge found Ochoa’s interview statements to Officer

Swinerton at the FBI field office similarly were not subject to suppression.

Because Ochoa failed to unambiguously and unequivocally invoke his Fifth and

Sixth Amendment rights by clearly requesting counsel, the statements were not

taken in violation of Miranda.

Over Ochoa’s objections, the district court adopted the R&R and denied

Ochoa’s motion to suppress.

B. The Government’s Motion in Limine

Anticipating that it would call Officer Starkey as a witness at Ochoa’s trial,

the government moved in limine to prevent Ochoa from cross-examining Officer

Starkey about a series of events that occurred in 2003 to 2004, when he was a

detective with the Miami-Dade Police Department (“MDPD”). In particular, the

government sought to preclude Ochoa from asking about two instances of

computer misuse involving Officer Starkey that the MDPD discovered in early

2004.

In the first instance, Officer Starkey used MDPD computers from May 2003

through January 2004 to send inappropriate, politically motivated emails to his

wife’s political opponent in an election. While Officer Starkey may not have

12 Case: 16-17609 Date Filed: 10/25/2019 Page: 13 of 85

initially admitted to any wrongdoing, it is undisputed that he later did so in a

written memorandum to his supervisor and in statements to Internal Affairs

investigators. In the second instance, Officer Starkey used his work computer to

access and download sexually explicit images, and subsequently installed and

attempted to use an unauthorized program to delete those images. The

unauthorized software was downloaded in April 2003. As a result of these actions,

the MDPD sustained two allegations for departmental misconduct or improper

procedure, and Officer Starkey was suspended for 10 days without pay. No

criminal charges were filed against Officer Starkey.

At trial, the district court ultimately granted the government’s motion after

hearing argument from the parties. The district court also entered a written ruling.

The district court concluded evidence of Officer Starkey’s disciplinary history was

not admissible under Federal Rule of Evidence 608(b), as it was “if at all, only

marginally probative of [his] character for truthfulness.” The district court further

concluded that, in any case, the evidence should be excluded pursuant to Federal

Rule of Evidence 403 because its probative value was “considerably outweighed

by the danger of confusion to, or misleading of, the jury.”

13 Case: 16-17609 Date Filed: 10/25/2019 Page: 14 of 85

III. THE FIRST TRIAL

On September 19, 2016, the case proceeded to trial on Counts One and Two,

which lasted four days. As Ochoa challenges his convictions based on the

sufficiency of the evidence, we will review more of the evidence presented at trial.

A. The Government’s Evidence

During the trial, the government presented testimony from 12 witnesses.

The government first called two Brink’s employees, including the messenger,

Perez, who was shot during the robbery. 5 The first employee, Bruce Woerner, was

the director of security for Brink’s and testified that $30,000 in $100 bills was to

be delivered to Check Cashing USA on the day of the robbery. Woerner further

stated the bag of money that was stolen contained a GPS tracking device, which

was briefly activated following the robbery, before it stopped transmitting a signal.

The government later presented testimony from Robert Stevens, a bureau

chief for the GPS tracking company that makes and sells the tracking device

Brink’s places in its money bags. Stevens testified that the GPS tracker in question

showed that the person in possession of the stolen money bag fled east to reach the

5 The government also showed the jury video footage from the Brink’s truck. One of the cameras on the truck captured footage of the robber running up to the truck. The robber then disappears from view. A gunshot can be heard, and then the robber is seen running away from the scene holding a bag. However, due to the quality of the footage and the fact that the robber’s face is in shadow, all that can be ascertained from the video is the general build of the robber and that he is wearing a hat. 14 Case: 16-17609 Date Filed: 10/25/2019 Page: 15 of 85

airport expressway, which he then took westward. At that point, the device

stopped transmitting, indicating it had been discovered and destroyed.

The second Brink’s employee to testify was Perez, the messenger from

whom the robber took the bag of money, and the person the robber shot. Perez

recounted his memory of the robbery, as detailed above. When asked if he was

able “to get a look” at the robber, Perez stated he “saw his face and the pistol.”

Perez further testified that he was shown a photo lineup by the FBI on September

2, 2014, and he identified a photograph of the person who held him up. Perez did

not have any recollection of providing law enforcement with a physical description

of the perpetrator prior to the day he reviewed the photo lineup. On cross-

examination, Perez acknowledged that, during the robbery, he saw the robber for

only four seconds, though Perez maintained he “saw his face” and recalled the

robber had a “slight build.”

The government then called the other two eyewitnesses who had identified

Ochoa in separate photo lineups. The first eyewitness, Jonathan Montenegro,

testified he was with a friend—Deybis Bermudez, the second eyewitness—at a

check cashing store when he witnessed the August 15 robbery of the Brink’s truck.

At the time the robbery occurred, Montenegro was inside the check cashing store,

“walking up and down” in front of the window. Montenegro saw the robber’s face

while the robber was confronting Perez and as he ran by the window. Montenegro

15 Case: 16-17609 Date Filed: 10/25/2019 Page: 16 of 85

was able to describe the robber’s face, height, clothing, and skin color at the time

of the trial.

The second eyewitness, Deybis Bermudez, confirmed that he was at the

check cashing store with Montenegro on August 15 and was able to observe the

robbery. Bermudez heard someone screaming, “Give me the bag,” and turned

around in time to see a man with a gun “fighting with security.” Although

Bermudez was not able to see the robber’s face very well during the confrontation,

he saw the robber’s profile as he ran away, and was able to describe the robber to

police as “[t]hin, with a beard, close-cut beard, short hair, like my shade of

skin[,] . . . [a]nd about my height.”

Both eyewitnesses also testified about their subsequent identifications of

Ochoa from separate photo lineups. Montenegro and Bermudez were together

when they were approached by Officer Starkey. The two were separated, and each

identified who he believed to be the perpetrator of the robbery.

Montenegro testified that, when he viewed the photo lineup, he was able to

quickly narrow it down to two photographs, which he then asked to “take a closer

look” at. Once he made an identification, he told Officer Starkey he was sure, and

he recalled at trial that he “was completely sure” about his identification at the

time. As for Bermudez, he again acknowledged that he was not able to see the

16 Case: 16-17609 Date Filed: 10/25/2019 Page: 17 of 85

robber’s face very well, but he picked the picture that he thought looked most like

the man he had seen, based primarily on the shade of his skin. 6

The government then presented the testimony of FBI Special Agent James

Kaelin, who participated in the execution of the search warrant at Ochoa’s

residence and photographed the evidence seized. The residence had three

bedrooms and three bathrooms, but most of the evidence Agent Kaelin

photographed came from what Agent Kaelin identified as Ochoa’s bedroom.

Agent Kaelin drew the conclusion because several of Ochoa’s personal items—

including his driver’s license, cell phones, and travel documents—were recovered

from that bedroom.

Agent Kaelin recounted the evidence discovered in the bedroom, including,

as we detailed above, Ochoa’s driver’s license, cell phones, receipts for purchases

made after the date of the robbery, travel documents, and merchandise (such as

clothing, shoes, and hats) that appeared to be newly purchased. Notably, one of

the receipts confirmed that Ochoa had purchased a cell phone—one associated

with the number (305) 986-5014—three days before the robbery. Agent Kaelin

also testified as to the $12,900 in $100 bills that was found in the freezer.

6 None of the three witnesses actually made an in-court identification of Ochoa. Rather, each witness simply testified that he had chosen a photo from a lineup, and each witness was able to identify the photo he chose because he had signed or initialed the photo at the time of the identification. 17 Case: 16-17609 Date Filed: 10/25/2019 Page: 18 of 85

On cross-examination, Agent Kaelin acknowledged there were bags of what

appeared to be newly purchased clothing in the common areas of the residence,

along with displays for jewelry and sunglasses, and boxes of cologne and perfume.

Based on the amount of merchandise throughout the residence, Agent Kaelin

conceded it looked like someone might have been running a “home business”

selling the merchandise. Agent Kaelin further acknowledged that several other

people apparently lived in the residence with Ochoa.

Officer Starkey testified next. As the lead investigator into the Brink’s

robbery, Officer Starkey described the investigative steps he took to identify

Ochoa as the robber, including, as we detailed above, the development of a lead

that pointed to Ochoa and the subsequent identifications via photo lineup by the

victim and two witnesses. As to the identifications, Officer Starkey confirmed that

the victim and both witnesses identified a photograph of Ochoa as the robber.

Officer Starkey also testified regarding the process by which he compiled the

photo lineups and presented them to the witnesses.

Officer Starkey offered further testimony concerning these processes on

cross-examination, during which defense counsel questioned him about why and

how he chose the particular photo of Ochoa that appeared in the lineup and

whether he pressured any of the witnesses into making a selection. Of note,

Officer Starkey denied that any of the three witnesses had indicated to him that

18 Case: 16-17609 Date Filed: 10/25/2019 Page: 19 of 85

they were unable to choose between two photos, which he stated would have

constituted a “non-identification.”

Officer Starkey also offered testimony concerning the interview he

conducted with Ochoa at the FBI field office, and the government submitted into

evidence several clips from the interview, which were then played for the jury. Of

note, Ochoa confirmed that he had purchased a plane ticket to Nicaragua, though

he claimed that he was going to visit his grandmother and that his aunt gave him

the money to purchase the ticket. Ochoa also told Officer Starkey during the

interview that law enforcement should “put on” Ochoa anything recovered from

the house that was “criminal” or “not supposed to be there.” However, at the end

of the interview, he asserted that he “didn’t commit [any] crime” and could not

cooperate with law enforcement because he did not “know anything.”

Officer Starkey further testified that he participated in the execution of the

search warrant at Ochoa’s residence and discovered the money in the freezer. On

cross-examination, Officer Starkey acknowledged that he had not discovered any

direct link indicating that the currency found in the freezer was the particular

currency taken from the Brink’s truck.

The final set of witnesses the government called all testified concerning

evidence retrieved from one of the cell phones that was seized from Ochoa’s

bedroom. The government called Special Agent Jeffrey Etter, a computer forensic

19 Case: 16-17609 Date Filed: 10/25/2019 Page: 20 of 85

examiner with the FBI, Marilyn Dilly, a supervisor in subpoena compliance with

Sprint, and Special Agent David Magnuson, a member of the FBI’s cellular

analysis survey team. Agent Etter established that one of the phones taken from

Ochoa’s bedroom was likely the same phone Ochoa had purchased three days

before the robbery, as it was associated with the same number that appeared on the

receipt the search team recovered.

Based on the records for that phone provided by Sprint, Agent Magnuson

testified concerning which cell towers the phone connected to on the date and time

of the robbery and immediately thereafter. This cell-tower data, when compared

with the GPS tracking for the stolen money bag, indicated that the phone’s likely

position was consistent with the GPS tracker’s location immediately following the

robbery and immediately before the GPS tracker was deactivated.

At the close of the government’s case, Ochoa moved under Rule 29 of the

Federal Rules of Criminal Procedure for a judgment of acquittal, arguing primarily

that the government had failed to prove it was actually Ochoa who committed the

robbery. The district court denied the motion, and Ochoa rested without putting on

any evidence.

B. The Verdict and Sentence

After deliberating, the jury found Ochoa guilty on both counts. The

presentence investigation report (“PSR”) initially calculated Ochoa’s total offense

20 Case: 16-17609 Date Filed: 10/25/2019 Page: 21 of 85

level of 27, based on the following: (1) a base offense level of 20, pursuant to

U.S.S.G. § 2B3.1(a); (2) a two-level increase because the property of a financial

institution was taken, pursuant to U.S.S.G. § 2B3.1(b)(1); (3) a four-level increase

because a victim sustained serious bodily injury, pursuant to U.S.S.G.

§ 2B1.3(b)(3)(B); and (4) a one-level increase because the loss amount was more

than $20,000 but less than $95,000, pursuant to U.S.S.G. § 2B3.1(b)(7)(B).

The PSR also concluded that Ochoa was subject to an enhanced sentence as

a career offender, pursuant to U.S.S.G. § 4B1.1, because: (1) he was at least 18

years old when he committed the offenses of conviction; (2) one of his offenses of

conviction was a felony “crime of violence”; and (3) he was previously convicted

of at least two felony “crimes of violence.” The PSR identified two prior Florida

convictions as qualifying “crimes of violence” under § 4B1.1: (1) a 2007

conviction for armed robbery; and (2) a 2009 conviction for second-degree murder.

Based on his career-offender designation, Ochoa’s base offense level was

increased to 32.

Ochoa’s total offense level of 32 and criminal history category of VI—

which was also based on his career-offender status under § 4B1.1(b)—resulted in

an advisory guidelines range of 210 to 262 months’ imprisonment. However,

because Ochoa was a career offender with a count of conviction other than his

§ 924(c) conviction—his conviction for Hobbs Act robbery—his guideline range

21 Case: 16-17609 Date Filed: 10/25/2019 Page: 22 of 85

became 360 months’ to life imprisonment, pursuant to U.S.S.G. §§ 4B1.1(c)(2) and

(3).

Prior to sentencing, Ochoa did not object to the PSR. At sentencing, he

objected to, inter alia, paragraphs 36 and 37 of the PSR—which detailed his

Florida convictions for armed robbery and second-degree murder, respectively. He

did not, however, specifically argue that either of his prior Florida convictions did

not categorically qualify as a violent felony under U.S.S.G. § 4B1.2(a).

Following the sentencing hearing, the district court sentenced Ochoa to a

total sentence of 360 months’ imprisonment, consisting of a 240-month sentence as

to Count One, followed by a consecutive 120-month sentence as to Count Two.

Ochoa appealed, generating case no. 16-17609 in this Court.

IV. MISTRIAL, DISMISSAL & REINDICTMENT ON COUNT THREE

On September 26 and 27 of 2016, a second jury trial was held, this time on

Count Three of the indictment, which charged Ochoa with being a felon in

possession of a firearm and ammunition. When the trial resulted in a hung jury,

the district court declared a mistrial.

On September 28, 2016, the district court issued an order initially setting

retrial for January 23, 2017. The district court’s order specifically noted that “THE

SCHEDULED TRIAL DATE . . . MAY BE SET BEYOND THE TIME LIMITS

OF THE SPEEDY TRIAL ACT,” and instructed the parties to notify the court

22 Case: 16-17609 Date Filed: 10/25/2019 Page: 23 of 85

within ten days “THAT THEY OBJECT TO THIS TRIAL DATE AND INSIST,

IN WRITING, ON A TRIAL DATE WITHIN THE SPEEDY TRIAL ACT

DEADLINES.” Despite the fact that the January 23, 2017, date was well outside

the statutory Speedy Trial period, neither party objected or otherwise notified the

court until well after the expiration of the speedy trial period, which occurred on

December 6, 2016.7

On December 28, 2016, Ochoa’s defense counsel filed a motion to

withdraw, which the district court eventually granted, following a hearing, on

January 25, 2017. In its order granting the motion to withdraw, the district court

continued the trial on Count Three. Soon thereafter, successor defense counsel

requested an additional 60 days continuance to prepare for trial, which the district

court granted. The district court ultimately set a trial date on Count Three for June

5, 2017, with the order again containing language notifying the parties that the trial

date may be set outside the time limits of the Seedy Trial Act.

On April 3, 2017, Ochoa, represented by successor defense counsel, moved

to dismiss Count Three under the Speedy Trial Act, noting that approximately 90

days had lapsed between the September 27, 2016, mistrial and December 28, 2016,

7 The district court calculated the 70-day Speedy Trial period as beginning on September 28, 2016 (the day after the mistrial on Count Three) and ending on December 6, 2016. Whatever the correct calculation, it is undisputed that Ochoa was not retried within the applicable 70-day period. 23 Case: 16-17609 Date Filed: 10/25/2019 Page: 24 of 85

when prior counsel had moved to withdraw. The government agreed that Count

Three was subject to dismissal, but asked the district court to dismiss the charge

without prejudice. On May 9, 2017, the district court granted Ochoa’s motion but

agreed to dismiss Count Three without prejudice after considering the relevant

statutory factors.

Meanwhile, Ochoa had been transported to Coleman Penitentiary to begin

serving his federal sentence on Counts One and Two. Because Ochoa’s presence

was again needed in Miami for his trial on Count Three, on April 3, 2017, the

government secured a writ of ad prosequendum so that Ochoa could be transferred

to the federal detention center in Miami. Although the district court had dismissed

Count Three without prejudice on May 9, Ochoa was transferred to the federal

detention center in Miami on May 22, 2017, pursuant to the previously issued writ.

He remained there through at least August 2017.

On August 22, 2017, the government obtained a new indictment against

Ochoa, again charging him with knowingly possessing a firearm and ammunition

as a convicted felon, in violation of § 922(g)(1).8 Like the superseding indictment

filed in the first case, the new indictment specifically charged that Ochoa, “having

8 The new indictment included a single felon-in-possession count, which was identical to Count Three in the superseding indictment filed in the first case. For ease of reference, we will continue to refer to this felon-in-possession count as “Count Three” throughout this opinion.

24 Case: 16-17609 Date Filed: 10/25/2019 Page: 25 of 85

previously been convicted of a crime punishable by imprisonment for a term

exceeding one year, did knowingly possess a firearm and ammunition.” The

indictment alleged that the firearm and ammunition were:

a. One (1) Heckler & Koch, .45 caliber semi-automatic pistol; 9

b. Twenty (20) rounds of Hornaday, .45 caliber ammunition;

c. Two (2) rounds of “R-P” Remington, .45 caliber ammunition; 10

and

d. Thirty-two (32) rounds of Speer, .45 caliber ammunition.11

Ochoa moved to dismiss the new indictment under the Speedy Trial Act,

arguing the government had failed to indict him within 30 days of his “arrest.”

Ochoa insisted that his presence at the federal detention center pursuant to the writ

9 Government’s Exhibits 21F, 21G, 21I, 22, and 23 collectively show the black Heckler & Koch case and its contents—a Heckler & Koch handgun and three loaded magazines—that agents discovered in the yard just outside Ochoa’s house. 10 Government’s Exhibits 9L, 9M, and 9N show the Hornady box—which contains four rounds of .45-caliber ammunition—and the large capacity magazine, first in the drawer where agents discovered them and then on top of the dresser. Government’s Exhibit 13 then shows that magazine unloaded and the same Hornady box, now containing 16 more rounds of Hornady .45- caliber ammunition after, according to Agent Kaelin, someone “placed the rounds from the magazine in the box.” The four rounds in the Hornady box in the drawer, plus the 16 rounds from the magazine now placed in that Hornady box, yield the total 20 Hornady rounds. Exhibit 13 also shows the two other rounds from the magazine.

11 Government’s Exhibit 21G shows the black gun case opened with the three loaded magazines. Government’s Exhibit 24 shows the three magazines found in that gun case, unloaded, and their contents: 31 rounds of Speer ammunition. Agent Kaelin testified that all of the ammunition recovered from those magazines was .45-caliber Speer brand ammunition. Government’s Exhibits 19C, 19D, 19E and 20 show the final round of Speer ammunition, which is the stray bullet recovered from the yard, and which Agent Kaelin also identified as Speer brand. 25 Case: 16-17609 Date Filed: 10/25/2019 Page: 26 of 85

of ad prosequendum in the absence of any operative indictment amounted to an

“arrest” for purposes the Speedy Trial Act, which restarted the Act’s 30-day clock.

As a result, he argued, the government’s August 22, 2017, indictment—90 days

after his transfer to the federal detention center in Miami on May 22, 2017—was

untimely.

The government opposed Ochoa’s motion to dismiss, arguing Ochoa

remained detained following the dismissal of Count Three not because he was

being held pending indictment, but because he was serving a prison sentence

imposed on Counts One and Two. Thus, his continued detention at the federal

detention center, even after the dismissal of Count Three did not constitute a new

“arrest” for purposes of the Speedy Trial Act. The district court agreed with the

government and denied Ochoa’s motion to dismiss.

V. RETRIAL ON COUNT THREE

In October 2017, the case proceeded to trial. For purposes of this retrial, the

district court allowed Ochoa to adopt several motions and objections already made

concerning evidence presented at the first trial, including the objections raised in

his motion to suppress statements and evidence. Because Ochoa challenges this

conviction too based on the sufficiency of the evidence, we will review more of the

evidence presented at the retrial on Count Three.

26 Case: 16-17609 Date Filed: 10/25/2019 Page: 27 of 85

During the retrial, the government presented evidence from eight witnesses,

over the course of two days. The government’s theory was that Ochoa

constructively possessed the gun and three magazines of Speer ammunition in the

black gun case that was discovered outside his residence, as well as the Hornady

and Remington ammunition found in the drawer in the bedroom. As to how the

black gun case ended up in a bush outside the residence, the government argued to

the jury that, while agents were securing the residence and awaiting a search

warrant, Ochoa’s brother, Angel, while pretending to relieve himself, entered the

residence, took the black gun case out of the bedroom drawer, and threw it in the

bushes in an effort to “get rid of what he thinks is the thing that is getting his big

brother in trouble.”

At the start of the trial, Ochoa stipulated that he was convicted previously of

two felonies involving the knowing possession of a firearm, although no facts of

the crimes were disclosed. The government eventually presented this stipulation to

the jury, pursuant to Rule 404(b) of the Federal Rules of Evidence, “for the limited

purpose of assisting [the jurors] in determining whether [Ochoa] had the state of

mind or the intent necessary to commit the crime charged in the indictment, and

whether [Ochoa] committed the acts charged in the indictment by accident or by

mistake.”

27 Case: 16-17609 Date Filed: 10/25/2019 Page: 28 of 85

The government first called Agent Swinerton, who led the SWAT team that

arrested Ochoa. Agent Swinerton testified as to the details of Ochoa’s arrest and

subsequent pre-Miranda questioning, as we have detailed them above, including

his brief detention of Ochoa, his brother Angel, and a third male occupant of the

residence, and Ochoa’s verbal statement that there was a gun inside the residence

in a drawer in a bedroom.

Special Agent Matthew Carpenter also testified. He similarly recounted

events, briefly discussed above, concerning the discovery outside the residence of a

stray bullet and a black gun case. Notably, Carpenter testified that he—along with

another FBI agent (Special Agent Jason May)—arrived at the residence just after

the SWAT team left, and was tasked with ensuring that no one entered or exited

the residence until officers obtained a search warrant. At some point, one of the

occupants of the residence, later identified as Ochoa’s younger brother Angel,

approached Agent May and asked to use the restroom. Angel was told he could

not enter the residence, but he was permitted to go to the side yard for privacy.

Angel walked along the west side of the residence toward the backyard, and he

then disappeared around the corner of the residence. After what Agent Carpenter

believed to be an unusually long time had passed and Angel had not returned,

Agent Carpenter walked around to the back of the residence and saw Angel

walking toward him, coming from the east side yard. Agent Carpenter found

28 Case: 16-17609 Date Filed: 10/25/2019 Page: 29 of 85

Angel’s movements suspicious, as it seemed unnecessary for Angel to walk all the

way to the other side of the residence for privacy.

Agent Carpenter walked over to the east side of the residence (from which

Angel had just come) and found on the ground a .45-caliber bullet—which he

described as “shiny” and “new”—along with a black gun case in some nearby

bushes. Agent Carpenter also discovered that the residence’s back door was

unlocked. When Agent Carpenter discovered the bullet and gun case, he called

Agent May over to look. Agent May retrieved the black gun case and confirmed

there was a gun inside. At that point, Agent May placed the black gun case back in

the bushes and called Agent Kaelin over to photograph and take custody of the

items.

Once the search warrant was obtained, Agent Carpenter participated in the

search of the residence and property. As is relevant here, he searched a red

Mercedes that was parked on the front lawn and found a Florida driver’s license

bearing Ochoa’s name, which listed his address as the residence at issue.

Agent May also testified, confirming Agent Carpenter’s recitation of the

discovery of the black gun case. Agent May was shown a picture of the contents

of the black case, which he identified as a .45-caliber Heckler & Koch handgun,

along with three magazines, which he stated were filled with Speer brand

ammunition.

29 Case: 16-17609 Date Filed: 10/25/2019 Page: 30 of 85

Special Agent Matthew Lanthorn testified that he also was present for

Ochoa’s interview with Officer Starkey. Through Agent Lanthorn, the government

again submitted several clips of the interview.

Agent Kaelin testified next, describing, as he did in the first trial, the

execution of the search warrant. Agent Kaelin discussed his discovery of several

of Ochoa’s personal items, including another driver’s license, mail, and travel

documents, all of which bore Ochoa’s name. Agent Kaelin also found a Samsung

cellphone, which was assigned to the user “Ochoa, Daniel,” and which contained a

photo of Ochoa. Agent Kaelin identified a video, recovered from one of the

cellphones found in the bedroom, which showed Ochoa lying on the bed in the

room with an unidentified woman.

Agent Kaelin further testified that, upon searching a “nightstand” in the

bedroom, he discovered, in a drawer, an empty gun holster, a large capacity

magazine loaded with .45-caliber rounds and a box containing four rounds of

.45-caliber Hornady brand ammunition. No firearm was recovered from the

bedroom.

Finally, the government called two FBI analysts. The first analyst testified

that she was asked to examine several of the recovered items for fingerprints: the

firearm, several magazines, cartridges, and the box of Hornady ammunition. She

was only able to recover latent prints of value from the bullet tray inside the

30 Case: 16-17609 Date Filed: 10/25/2019 Page: 31 of 85

ammunition box, and those prints did not match Ochoa’s. However, she stated

that, in her experience, latent prints of value are rarely recovered from firearms and

ammunition, and the fact that she was unable to recover any fingerprints of value

from the firearm she tested did not mean that Ochoa never touched it.

The second analyst testified that he was asked to process the gun for any

DNA evidence and compare any DNA recovered to a reference sample from

Ochoa. The results were inconclusive, meaning the analyst could neither include

nor exclude Ochoa as a possible contributor to the DNA found on the gun,

primarily because the DNA profile on the gun was too limited to be used for

matching purposes. The analyst, however, could confirm that the contributor was

male.

At the close of the government’s case, Ochoa moved under Federal Rule of

Criminal Procedure 29 for a judgment of acquittal, arguing the government had

failed to show that Ochoa actually or constructively possessed the firearm

recovered from the yard, nor had the government established that he possessed

either the ammunition recovered from the yard or the ammunition discovered in

the bedroom drawer. In making this argument, Ochoa’s defense counsel noted that

“the [g]overnment’s case is essentially that because the bullets were found in Mr.

Ochoa’s drawer, which was located in a room in which he slept, he constructively

possessed the bullets, and inferentially he constructively possessed the firearm

31 Case: 16-17609 Date Filed: 10/25/2019 Page: 32 of 85

which was located outside.” Defense counsel maintained that no reasonable juror

could “accept that the drawer was Mr. Ochoa’s or that the room was Mr. Ochoa’s

such that he had the right of exclusion and of dominion and control over that

particular drawer’s contents.” The district court denied the motion for judgment of

acquittal, and Ochoa rested without putting on any evidence.

After deliberating, the jury found Ochoa guilty of knowingly possessing a

firearm and ammunition as a convicted felon. The PSR calculated a total offense

level of 28, consisting of: (1) a base offense level of 26, pursuant to U.S.S.G.

§ 2K2.1(a)(1); and (2) a two-level increase, pursuant to U.S.S.G. § 2K2.1(b)(4)(A),

because the firearm Ochoa possessed was reported stolen. Section 2K2.1(a)(1)

provides for a higher base offense level of 26 when (1) the offense involved a

“semiautomatic firearm that is capable of accepting a large capacity magazine”;

and (2) the defendant committed the offense after sustaining two felony

convictions for a “crime of violence.” U.S.S.G. § 2K2.1(a)(1). The PSR identified

the same two prior Florida convictions that underlaid his career-offender

designation in the first sentencing proceeding: attempted armed robbery and

second-degree murder.

Ochoa’s total offense level of 28 and criminal history category of V resulted

in an advisory guidelines range of 130 to 162 months’ imprisonment. Because the

32 Case: 16-17609 Date Filed: 10/25/2019 Page: 33 of 85

statutory maximum penalty for Ochoa’s § 922(g) conviction was 120 months’

imprisonment, that maximum sentence became the advisory guidelines sentence.

See U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized maximum sentence is

less than the minimum of the applicable guideline range, the statutorily authorized

maximum sentence shall be the guideline sentence.”).

Prior to sentencing, Ochoa filed written objections to, inter alia, the

application of the higher base offense level of 26 under § 2K2.1(a)(1). He argued

that this higher base offense level was not properly applied to him because: (1) his

convictions for attempted armed robbery and second-degree murder did not qualify

as crimes of violence under U.S.S.G § 4B1.2; and (2) the firearm in the yard was

not found in close proximity to the large capacity magazine found in the bedroom

drawer.

Regarding his prior convictions, Ochoa argued that Florida attempted armed

robbery and Florida second-degree murder did not qualify as crimes of violence

under either the elements or enumerated offenses clauses of § 4B1.2, though he

acknowledged that at least his objection to the use of the attempted armed robbery

conviction was precluded by this Court’s decision in United States v. Lockley, 632

F.3d 1238 (11th Cir. 2011). In response, the government—in addition to relying

on Lockley—argued that second-degree murder under Florida law requires the use

33 Case: 16-17609 Date Filed: 10/25/2019 Page: 34 of 85

of physical force, and it therefore qualifies as a crime of violence under

§ 4B1.2(a)’s elements clause.

At the sentencing hearing, the district court overruled Ochoa’s objections.

As to his objection that his prior Florida convictions were not crimes of violence,

the district court noted that it was “going to adopt the rationale of the [g]overnment

without going through all the details.” As to whether the firearm found in the yard

was in “close proximity” to the large capacity magazine in the bedroom drawer,

the district court reasoned that there was “strong evidence” that the firearm “was

taken out by that young man [Angel] who, somehow, conned the officers to allow

him to go back in to relieve himself and, at that time, went into the house, took out

the firearm, the other magazines fully loaded with [.45-caliber] ammunition but,

for some reason, forgot or missed the fourth magazine.”

Accordingly, the district court sentenced Ochoa to 120 months’

imprisonment on Count Three, all but 30 months of which would run concurrently

with his 360-month sentence imposed on Counts One and Two. Ochoa appealed,

generating case no. 18-10142 in this Court, which subsequently was consolidated

with appeal no. 16-17609. We now address Ochoa’s claims of error arising out of

both proceedings.

34 Case: 16-17609 Date Filed: 10/25/2019 Page: 35 of 85

VI. CROSS-EXAMINATION OF OFFICER STARKEY

On appeal, Ochoa argues the district court erred in granting the

government’s motion in limine, thereby limiting his cross-examination of Officer

Starkey in the first trial on Counts One and Two. Ochoa contends that the

evidence concerning Officer Starkey’s misuse of police department computers,

and, crucially, his efforts to conceal that misuse, was admissible under Rule 608(b)

to show his character for untruthfulness. Ochoa argues the district court’s refusal

to allow cross-examination on these topics deprived him of his Sixth Amendment

right to confront a key witness against him. 12

We have recognized the importance of the right to full cross-examination,

particularly when applied to the government’s “star” witness or one who provides

an “essential link” in the government’s case. United States v. Lankford, 955 F.2d

1545, 1548 (11th Cir. 1992) (quotation marks omitted). However, this right is “not

without limitation,” and a defendant “is entitled only to an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” United States v. Jeri, 869 F.3d 1247,

1262 (11th Cir.) (quotation marks omitted), cert. denied, 138 S. Ct. 529 (2017).

12 “The trial court has broad discretion under [Federal Rule of Evidence] 611(b) to determine the permissible scope of cross-examination and will not be reversed except for clear abuse of that discretion.” United States v. Jones, 913 F.2d 1552, 1564 (11th Cir. 1990); see also Fed. R. Evid. 611(b). “The denial of a defendant’s Confrontation Clause right to cross- examination is examined for harmless error.” United States v. Ndiaye, 434 F.3d 1270, 1286 (11th Cir. 2006). 35 Case: 16-17609 Date Filed: 10/25/2019 Page: 36 of 85

Additionally, while extrinsic evidence is generally inadmissible to prove

specific instances of a witness’s conduct, “the court may, on cross-examination,

allow them to be inquired into if they are probative of the character for truthfulness

or untruthfulness of . . . the witness.” Fed. R. Evid. 608(b). Even relevant

evidence, however, may be excluded if “its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” Fed. R. Evid. 403; see also Delaware v. Van Arsdall, 475 U.S. 673,

679, 106 S. Ct. 1431, 1435 (1986) (“[T]rial judges retain wide latitude insofar as

the Confrontation Clause is concerned to impose reasonable limits on . . . cross-

examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or

only marginally relevant.”).

Considering these standards, we conclude that the district court acted well

within its discretion in limiting Ochoa’s cross-examination of Officer Starkey. We

acknowledge that Officer Starkey’s misconduct—particularly his attempt to

destroy evidence of his misuse of police department computers—is relevant to his

character for truthfulness or lack thereof. However, we agree with the district

court that such relevance is only marginal in this particular case, and we cannot say

that that the district court’s decision to exclude the evidence out of concern that it

36 Case: 16-17609 Date Filed: 10/25/2019 Page: 37 of 85

would confuse or mislead the jury was so unreasonable as to constitute an abuse of

discretion. See Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435.

As to relevancy, Ochoa insists the fact that Officer Starkey previously

attempted to destroy evidence of, and lied about, his misuse of police department

computers was relevant to whether the jury should credit his testimony. While

Officer Starkey’s conduct may bear on his character for truthfulness generally, it

does not, as Ochoa appears to contend, bear directly on whether Officer Starkey is

likely to have engaged in any misconduct during the course of a criminal

investigation in which he was not charged and was only testifying. In both

instances of misconduct, Officer Starkey engaged in deception to conceal

embarrassing personal behavior, not to falsify or manipulate evidence in an

ongoing criminal investigation of another person.

The probative value of the disciplinary incidents at issue is further

diminished by their age. Both of the incidents occurred in 2003 and 2004, over 12

years before Ochoa’s trial in September 2016. Although Rule 608(b) does not

place any temporal limitation on evidence of specific instances of witness conduct,

the remoteness of the incidents in question may nonetheless bear on their

relevance. See United States v. Novaton, 271 F.3d 968, 1004–07 (11th Cir. 2001)

(affirming district court’s decision to limit cross-examination of an officer

37 Case: 16-17609 Date Filed: 10/25/2019 Page: 38 of 85

concerning a 6-year-old misconduct investigation, in part because “the

investigation was temporally remote from [the officer’s] testimony”).

As to whether the evidence of Officer Starkey’s disciplinary incidents was

likely to confuse or mislead the jury, the district court reasonably concluded that

the jury was likely to focus on the underlying incidents that led to Officer’s

Starkey’s deceitful conduct—using a department computer to send inappropriate

emails and download sexually explicit images—as opposed to his attempts to cover

up or lie about those incidents. On appeal, Ochoa argues the district court could

have “limited [the] area of inquiry” so as to avoid focusing on some of the more

prurient details of the misconduct. But it is difficult to extricate Officer Starkey’s

deceitful conduct from the underlying actions he attempted to conceal.

Moreover, as an independent and alternative ground for affirming the district

court’s ruling, we conclude that any denial of Ochoa’s rights under the

Confrontation Clause was harmless. See Ndiaye, 434 F.3d at 1286. Ochoa

characterizes Officer Starkey as a “key witness” for the government, but this

description goes too far. Ochoa notes that Starkey was the lead investigator,

interviewed Ochoa, and showed the photo lineup to two eyewitnesses who

identified Ochoa as the robber. However, based on our review of the record,

Officer Starkey’s testimony served two primary purposes: (1) as a means to

introduce the excerpts of Ochoa’s post-Miranda interview; and (2) to establish that

38 Case: 16-17609 Date Filed: 10/25/2019 Page: 39 of 85

the person depicted in the photograph chosen out of the photo lineup by each of the

witnesses was Ochoa, as none of the witnesses made in-court identifications.

As to the former, Officer Starkey’s credibility did not have any bearing on

the weight jurors gave to Ochoa’s statements during the interview. Because the

jury was able to view and hear the video and audio recording themselves, they did

not need to rely on Officer Starkey’s characterization of Ochoa’s statements.

As to Officer Starkey’s testimony concerning the photo lineup, Ochoa seems

to suggest that undermining Officer Starkey’s character for truthfulness would

have called into question Officer Starkey’s assertion that he did not exert undue

pressure on any of the witnesses during the photo lineup procedure. But those

witnesses themselves were subject to rigorous cross-examination, during which

they could have testified to any inappropriate conduct by Officer Starkey. Thus,

simply undermining Officer Starkey would not have been enough to call the

identifications into question; Ochoa would have had to similarly call into question

the credibility of the three witnesses, none of whom testified they felt any undue

pressure to make a particular selection or any selection at all.

The only potential contradiction between the testimony of the witnesses and

Officer Starkey—which Ochoa pointed out to the district court in arguing his

position at trial—was Montenegro’s testimony that he initially had trouble

choosing between two photographs. Officer Starkey testified he did not recall any

39 Case: 16-17609 Date Filed: 10/25/2019 Page: 40 of 85

of the witnesses saying he could not choose between two photos and stated that

any such response would have constituted a “non-identification.” We are not

persuaded, however, that Montenegro’s initial indecision was particularly

meaningful, especially given his subsequent testimony that he “was completely

sure” of his eventual identification.

VII. MIRANDA VIOLATIONS

Ochoa next argues the district court erred in denying his motion to suppress

his pre- and post-Miranda statements and any evidence derived therefrom.13 He

first argues the district court erred in allowing Agent Swinerton to testify, during

the retrial on Count Three, as to Ochoa’s pre-Miranda statements concerning the

presence of a gun in the residence. He disputes the district court’s conclusion that

these statements fell within the public safety exception to Miranda. Second, Ochoa

argues the district court erred by denying his motion to suppress statements he

made to Officer Starkey during his post-Miranda interview, portions of which the

government played for the jury at both trials. Ochoa challenges the district court’s

finding that he did not unambiguously invoke his right to counsel or his right to

13 Ochoa does not specify what evidence he believes was derived from his statements. As discussed above, the magistrate judge made an explicit finding that, even excluding the challenged statements, the search warrant was supported by ample probable cause. In this appeal, Ochoa does not appear to contest this ruling, and he offers no argument concerning the validity of the search warrant. However, as we conclude the statements themselves were not taken in violation of Miranda, we need not address whether any evidence derived therefrom should have been excluded.

40 Case: 16-17609 Date Filed: 10/25/2019 Page: 41 of 85

remain silent during his interview with Office Starkey. We will address each set of

statements in turn.14

A. Pre-Miranda Statements (Public Safety Exception)

The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V. The

Supreme Court has construed this protection to mean that custodial interrogation

generally cannot occur before a suspect is informed of his Miranda rights. New

York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 2630 (1984). Here, there is

no dispute that Ochoa was “in custody” for Miranda purposes at the time Agent

Swinerton questioned Ochoa about the presence of weapons in the residence, as he

was handcuffed outside the home. Thus, Agent Swinerton’s questioning was

presumptively impermissible absent some exception to Miranda.

In New York v. Quarles, the Supreme Court established an exception for

public safety to the Miranda rule. 467 U.S. at 655–58, 104 S. Ct. at 2631–32.

This public safety exception allows law enforcement officers to question a suspect

without first informing him of his Miranda rights when they reasonably believe

doing so is necessary to protect either the officers or the public. Id. at 657–59, 104

14 “A denial of a motion to suppress involves mixed questions of fact and law. We review factual findings for clear error, and view the evidence in the light most favorable to the prevailing party. We review de novo the application of the law to the facts.” United States v. Barber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations omitted).

41 Case: 16-17609 Date Filed: 10/25/2019 Page: 42 of 85

S. Ct. at 2632–33. The Supreme Court reasoned that we do not want “to place

officers . . . in the untenable position of having to consider, often in a matter of

seconds, whether it best serves society for them to ask the necessary questions

without the Miranda warnings and render whatever probative evidence they

uncover inadmissible, or for them to give the warnings in order to preserve the

admissibility of evidence they might uncover but possibly damage or destroy their

ability to obtain that evidence and neutralize the volatile situation confronting

them.” Id. at 657–58, 104 S. Ct. at 2632. As a result, the Court explained, “the

need for answers to questions in a situation posing a threat to the public safety

outweighs the need for the prophylactic rule protecting the Fifth Amendment's

privilege against self-incrimination.” Id. at 657.

This Court has found the public safety exception applicable in a case that is

similar to this one. See United States v. Newsome, 475 F.3d 1221 (11th Cir.

2007). In that case, officers apprehended defendant Newsome in a motel room.

475 F.3d at 1222–23. The officers had reason to believe there was another person

in the room with Newsome at the time, and they knew that Newsome was “a

violent offender with a previous record and possibly in possession of a gun.” Id. at

1223. After securing the defendant with handcuffs, one officer asked the

defendant if there was “anything or anyone in the room that [the officer] should

know about.” Id. The defendant advised the officer that he had a gun “over there,”

42 Case: 16-17609 Date Filed: 10/25/2019 Page: 43 of 85

and motioned with his head towards a nightstand. Id. When the officer did not see

the gun, he asked the defendant where it was, and the defendant pointed the officer

to a black bag containing the weapon. Id.

In Newsome, this Court concluded the public safety exception applied,

noting that the officers had “asked what was necessary to secure the scene” given

the officers’ impression that there were at least two people in the room and that

they were dealing with a possibly armed, violent felon. Id. at 1225. Under these

circumstances, we reasoned, “[t]he officers reasonably believed that they were in

danger, and they acted accordingly to protect themselves.” Id. We noted that the

officer’s “broad phrasing”—i.e., his query about “anything” he needed to know

about—was not problematic, despite the risk that his question might have elicited

information not pertinent to the officers’ safety. Id. This was because “[a]n officer

is not expected to craft a perfect question in the heat of the moment.” Id. (citing

United States v. Williams, 181 F.3d 945, 954 n.13 (8th Cir. 1999) (noting that

“conditioning admissibility of evidence under the public safety exception on an

officer’s ability to ask questions in a specific form would run counter to the

Quarles Court’s decision that an officer may forego announcement of Miranda

warnings when public safety is threatened”)).

Here, we similarly conclude that Agent Swinerton asked questions he

reasonably believed were necessary to secure the scene following Ochoa’s arrest.

43 Case: 16-17609 Date Filed: 10/25/2019 Page: 44 of 85

Like the officers in Newsome, Agent Swinerton knew he was dealing with a

potentially violent suspect who was in possible possession of a firearm. 15 After all,

the offense for which law enforcement had probable cause to arrest Ochoa was an

armed robbery during which the robber shot a Brink’s messenger. While Agent

Swinerton may not have had a specific reason to suspect that any particular person

remained in the residence—as was the case in Newsome—his concern that other

individuals might have remained in the residence, despite Ochoa’s statements to

the contrary, was reasonable, considering the number of people who had already

emerged from the house at that point. And as Agent Swinerton testified, if the

agents were to discover “additional individuals” upon entering the home, “and [the

agents] know there[] [are] weapons in the house, it[] [is] going to change,

potentially, what [they] do.”

Given these facts, Officer Swinerton reasonably believed that he or his team

members could be in danger upon entering the residence, and he took appropriate

15 The dissent attempts to distinguish this case from Newsome and Quarles, in part, because this case involves the search of a private residence, and, therefore, there was no risk that members of the public might stumble upon any weapon present. But while technically in a larger public space (a motel), Newsome still involved a small, private space that, at the time, was occupied by the defendant and was not open to the public. In any event, the public safety exception applies whether the danger is to the public generally or to the officers alone. See Quarles, 467 U.S. at 658–59, 104 S. Ct. at 2633 (noting that police officers may ask “questions necessary to secure their own safety or the safety of the public”); Newsome, 475 F.3d at 1225 (“The [public safety] exception to Miranda also applies where there is a threat to the officers rather than the public.”).

44 Case: 16-17609 Date Filed: 10/25/2019 Page: 45 of 85

action, even specifically communicating to Ochoa and the other occupants of the

residence that he was trying to ascertain “if there’s anything that could hurt my

guys before we go in.” 16 Notably too, it appears that Ochoa’s statement about the

gun in the bedroom drawer was in direct response to this general statement by

Agent Swinerton, not to his specific question about “[b]ombs, booby traps, [and]

weapons.” For all of these reasons collectively, we conclude Ochoa’s statements

to Agent Swinerton fall under the public safety exception to Miranda and were

properly admitted during Ochoa’s retrial on Count Three.

B. Post-Miranda Statements (Invocation of Rights)

“When a person undergoing a custodial interrogation states that he wishes to

remain silent the questioning must end, and if he expresses a desire to consult with

an attorney, the questioning must cease until one is provided for him.” United

States v. Acosta, 363 F.3d 1141, 1151 (11th Cir. 2004) (citing Miranda, 384 U.S.

at 473–74, 86 S. Ct. at 1627–28). However, the suspect’s invocation of his rights

must be unequivocal. Davis v. United States, 512 U.S. 452, 461–62, 114 S. Ct.

2350, 2356 (1994).

16 The dissent focuses particularly on Agent Swinerton’s use of the word “weapon,” arguing it was fine for him to ask about bombs, booby traps, or other self-executing hazards but not “non-self-executing weapons,” which become harmful only when wielded by a person. However, we are not required to parse Agent Swinerton’s precise wording in such a manner or to focus on one word, given the officers had reason to believe there may have been additional people in the residence who may have had access to a weapon. See Newsome, 475 F.3d at 1225. 45 Case: 16-17609 Date Filed: 10/25/2019 Page: 46 of 85

“If the suspect’s statement is not an unambiguous or unequivocal request for

counsel, the officers have no obligation to stop questioning him.” Id. In other

words, a suspect must articulate his desire with sufficient clarity that a “reasonable

police officer in the circumstances would understand the statement to be a request

for an attorney” or to cease further questioning. Id. at 459, 114 S. Ct. at 2355; see

also Coleman v. Singletary, 30 F.3d 1420, 1423 (11th Cir. 1994).

Here, we must determine whether Ochoa’s statements that he did not “agree

with” the statement that he was “willing to answer questions without a lawyer

present” and his initial hesitancy to sign the waiver constituted an “unambiguous

or unequivocal” invocation of either his right to counsel or to remain silent. See

Davis, 512 U.S. at 461–62, 114 S. Ct. at 2356. After careful review, we conclude

Ochoa did not successfully invoke his right to counsel or his right to remain silent.

As a preliminary matter, we note that it is undisputed that Ochoa did not

expressly state that he wished to consult an attorney or to remain silent. See

Berghuis v. Thompkins, 560 U.S. 370, 382, 130 S. Ct. 2250, 2260 (2010) (“[The

defendant] did not say that he wanted to remain silent or that he did not want to

talk with the police. Had he made either of these simple, unambiguous statements,

he would have invoked his right to cut off questioning. Here he did neither, so he

did not invoke his right to remain silent.” (quotation marks and citation omitted)).

46 Case: 16-17609 Date Filed: 10/25/2019 Page: 47 of 85

As to the statements he did make—that he didn’t “really agree” with the

Waiver of Rights provision on the Advice of Rights form—while one possible

interpretation of Ochoa’s responses could be that he did not wish to answer

questions at that point without a lawyer present, those statements are also

consistent with an expression of confusion as to what he was agreeing to by

signing the waiver form, which is how Officer Starkey claimed to have understood

them. This understanding of Ochoa’s statements—that he was confused and

required clarification—is also consistent with Ochoa’s apparent belief that he was

agreeing to “cooperate” by consenting to the interview. Under these

circumstances, it was appropriate for Officer Starkey to ask follow-up questions to

clarify what Ochoa meant by his ambiguous statements. See Medina v. Singletary,

59 F.3d 1095, 1105 (11th Cir. 1995) (holding it was appropriate for an officer to

ask a clarifying question in response to a defendant’s ambiguous statement

concerning his right to remain silent). Once Officer Starkey offered a brief

explanation of the waiver provision, Ochoa quickly assented, further indicating he

had only been confused previously and had not invoked his right to counsel or to

remain silent.

Because Ochoa did not unequivocally and unambiguously invoke either his

right to counsel or his right to remain silent, Officer Starkey was not obligated to

forgo the interview, and any statements Ochoa made therein were properly

47 Case: 16-17609 Date Filed: 10/25/2019 Page: 48 of 85

admitted into evidence at trial. This is particularly true where, after clarification,

Ochoa indicated in the affirmative that he would “speak without an attorney.”

Alternatively, Ochoa has not demonstrated that he suffered any harm as a

result of the admission of any statements made during the interview. See United

States v. Arbolaez, 450 F.3d 1283, 1292 (11th Cir. 2006) (“The admission of

statements obtained in violation of Miranda is subject to harmless error scrutiny.”

(quotation marks omitted)). On appeal, he does not refer to any particular

statement that was admitted at either trial, and he makes no argument concerning

the effect at trial of any allegedly ill-gotten statements. Indeed, Ochoa’s recitation

of the evidence presented during both trials does not mention any specific

statements that he made during the interview.

As to the portions of the interview that were shown to the jury during the

trial on Counts One and Two, Ochoa did not confess to the crime or otherwise

directly implicate himself in the charged robbery. In fact, the final clip that the

government played for the jury actually depicts Ochoa steadfastly denying that he

committed any crime.

As to the trial on Count Three, our review of the record indicates that the

primary evidentiary value of Ochoa’s interview statements was in reiterating that

Ochoa knew there was a gun in a drawer in the house and that the drawer in

question was in his bedroom. As to the first point, as we discussed above, the

48 Case: 16-17609 Date Filed: 10/25/2019 Page: 49 of 85

district court properly allowed Agent Swinerton to testify as to Ochoa’s

pre-Miranda statement that there was a firearm in the house in a drawer.

Concerning the second point, as we discuss below, the jury was presented with

ample circumstantial evidence from which it could have reasonably concluded that

the bedroom in which the ammunition was found was Ochoa’s.

Thus, as an independent basis for affirming the district court’s ruling on

Ochoa’s motion to suppress his post-Miranda statements, we conclude that even

assuming it was error to admit the statements, the error was harmless and does not

merit reversal.

VIII. SPEEDY TRIAL ACT

Ochoa next contends the district court erred under the Speedy Trial Act in

two ways, which we address separately.

A. Dismissal of Count Three Without Prejudice

First, Ochoa argues the district court should have dismissed Count Three of

the original indictment with prejudice.17 The Speedy Trial Act provides that, “[i]f

the defendant is to be tried again following a declaration by the trial judge of a

mistrial or following an order of such judge for a new trial, the trial shall

commence within seventy days from the date the action occasioning the retrial

17 “We review for an abuse of discretion whether a district court should dismiss an indictment with or without prejudice for a violation of the Speedy Trial Act.” United States v. Knight, 562 F.3d 1314, 1321 (11th Cir. 2009). 49 Case: 16-17609 Date Filed: 10/25/2019 Page: 50 of 85

becomes final.” 18 U.S.C. § 3161(e). Following the mistrial in Ochoa’s first trial

on Count Three, the retrial did not occur within 70 days, and the parties agree that

Count Three of the original indictment was subject to dismissal under the Speedy

Trial Act. The only issue on appeal is whether the district court acted within its

discretion in dismissing Count Three without prejudice, rather than with prejudice.

A district court has the discretion to dismiss an indictment with or without

prejudice under the Speedy Trial Act and must consider three factors when

determining the method of relief: (1) “the seriousness of the offense”; (2) “the facts

and circumstances of the case which led to the dismissal”; and (3) “the impact of a

reprosecution on the administration of this chapter and on the administration of

justice.” 18 U.S.C. § 3162(a)(2). “[T]he proper dismissal sanction to be imposed

in each case is a matter left to the exercise of the sound discretion of the trial judge

after consideration of the factors enumerated in the statute.” United States v.

Russo, 741 F.2d 1264, 1267 (11th Cir. 1984). The judgment of the district court

“should not lightly be disturbed” if the district court has considered all of the

statutory factors and if the underlying factual findings are not clearly erroneous.

United States v. Taylor, 487 U.S. 326, 337, 108 S. Ct. 2413, 2420 (1988).

After reviewing the record, we readily conclude that the district court did not

abuse its discretion in this case. As to the first factor, the district court determined

that the possession of a firearm and ammunition by a convicted felon is a serious

50 Case: 16-17609 Date Filed: 10/25/2019 Page: 51 of 85

offense. Ochoa does not contest this conclusion, nor could he, as we have

expressed a similar sentiment on numerous occasions. See, e.g., United States v.

Jones, 601 F.3d 1247, 1257 (11th Cir. 2010) (“[P]ossession of ammunition by a

convicted felon and drug user are clearly serious crimes.”); Knight, 562 F.3d at

1323 (“The district court correctly determined that the statutory minimum sentence

of ten years of imprisonment [for possession of a firearm by a convicted felon]

reflects the seriousness of Knight’s offense.”).

Instead, Ochoa argues that the “seriousness of the offense” should

nonetheless weigh against dismissal without prejudice in this case because “the

pending charge subject to dismissal was less serious than [his] crimes of conviction

[in Counts One and Two] for which he is serving 30 years in federal prison.”

Ochoa, however, points to no precedent, and we are not aware of any, indicating

that a district court’s analysis under § 3162(a)(2) should focus on the seriousness

of the offense relative to other offenses for which the defendant was already

convicted. And we see no reason to reward Ochoa in the Speedy Trial analysis

because he committed more serious crimes than the one at issue.

The district court’s written order also reflects its reasoned consideration of

the remaining two factors. As to the facts and circumstances leading to the

dismissal, the district court admittedly scheduled the retrial on Count Three outside

the 70-day window prescribed by the Speedy Trial Act. However, the district court

51 Case: 16-17609 Date Filed: 10/25/2019 Page: 52 of 85

correctly noted that neither party alerted the court to this Speedy Trial Act issue,

despite the district court’s explicit request that the parties notify the court if the

scheduled date for retrial was outside the Speedy Trial Act deadline. The parties

also apparently failed to comply with a local rule that required counsel to file

periodic reports indicating, among other things “the final date upon which the

defendant can be tried in compliance with the Speedy Trial Plan of this Court.”

See S.D. Fla. L.R. 88.5.

As the district court also noted, the Speedy Trial Act violation was complete

in early December of 2016, well before successor defense counsel entered the case

in January 2017 and requested an additional 60-day delay to prepare for trial.

Given that the fault for the delay cannot be attributed solely, or even primarily, to

any particular party, we cannot say the district court clearly erred in concluding the

second factor weighed in favor of dismissal without prejudice. See Taylor, 487

U.S. at 337, 108 S. Ct. at 2420.

As to the third factor, the district court correctly determined that Ochoa

failed to identify any prejudice resulting from the delay that has impacted his

defense or ability to prepare for trial. Ochoa’s briefs on appeal are similarly silent

as to this third factor, save for his conclusory assertion that “each of the[] factors

favor[s] dismissal with prejudice.”

52 Case: 16-17609 Date Filed: 10/25/2019 Page: 53 of 85

Accordingly, we conclude that the district court did not abuse its discretion

in dismissing Count Three of the original indictment without prejudice.

B. Ochoa’s Motion to Dismiss the Second Indictment

Ochoa next argues the district court erred in denying his motion to dismiss

the second indictment under the Speedy Trial Act on the ground it was not filed

within 30 days of his “arrest” for being a felon in possession of a firearm and

ammunition. Here are the facts Ochoa uses to construct this argument.

Ochoa was serving his 360-month sentence on his Counts One and Two

convictions at a federal penitentiary. On May 9, 2017, the district court entered its

order dismissing Count Three of the original superseding indictment. Despite this,

Ochoa was transferred, on May 22, 2017, from the federal penitentiary to the

federal detention center in Miami, pursuant to an earlier-issued writ of ad

prosequendum, ostensibly so that he would be available for his Count Three trial

which had been scheduled for June 5, 2017. He remained at the federal detention

center in Miami through at least August 29, 2017 (the date on which he filed his

motion to dismiss the new indictment).

Ochoa acknowledges that he was transferred to the federal detention center

to await trial on Count Three, not because he was arrested. Ochoa, however,

insists that, once Count Three was dismissed on May 9, 2017, and he was

nonetheless transferred to the federal detention center pursuant to the writ of ad

53 Case: 16-17609 Date Filed: 10/25/2019 Page: 54 of 85

prosequendum, his detention “in connection with” the felon-in-possession charge

amounted to an “arrest” under the Speedy Trial Act. Based on this contention,

Ochoa reasons that the government was obligated to file the new indictment on the

felon-in-possession charge within 30 days of his May 22, 2017, arrival at the

federal detention facility, which it did not do. The new indictment was not filed

until August 22, 2017.

We are not persuaded by Ochoa’s argument. The Speedy Trial Act provides

that an “indictment charging an individual with the commission of an offense shall

be filed within thirty days from the date on which such individual was arrested or

served with a summons in connection with such charges.” 18 U.S.C. § 3161(b). In

the ordinary case, the government holds a suspect in custody following his arrest in

anticipation of obtaining an indictment against him. In such cases, the anticipated

indictment of that suspect may provide the legal justification for the government’s

continued detention of the suspect. Not so here.

Because Ochoa was otherwise properly in federal custody serving the

sentences imposed on his Counts One and Two convictions, his continued presence

at the federal detention center in Miami did not constitute an “arrest” on Count

Three in any meaningful sense. Ochoa’s continued detention did not become an

“arrest” simply because of his being held at a pretrial detention facility, as opposed

54 Case: 16-17609 Date Filed: 10/25/2019 Page: 55 of 85

to federal penitentiary, or because his presence at that facility was pursuant to a

writ of ad prosequendum.

Ochoa’s continued detention following the dismissal of Count Three—

regardless of where that detention occurred—was not solely or even primarily

based on an anticipated new indictment. Instead, it was based on a valid criminal

judgment. Accordingly, we conclude Ochoa was not “arrested . . . in connection

with” any pending charges while he was being held at the federal detention center

in Miami, and we therefore find no error in the district court’s denial of Ochoa’s

motion to dismiss the second indictment under the Speedy Trial Act.

IX. SUFFICIENCY OF THE EVIDENCE

Ochoa maintains there was insufficient evidence to convict him any of the

three charges against him.18 We first address his convictions for Hobbs Act

robbery and use of a firearm together, before addressing his felon-in-possession

conviction.

18 “We review challenges to the sufficiency of the evidence to support a conviction de novo, viewing the evidence and all reasonable inferences derived therefrom in the light most favorable to the government.” United States v. Baldwin, 774 F.3d 711, 721 (11th Cir. 2014). To sustain a verdict of guilt, the evidence “need not exclude every reasonable hypothesis of innocence” or be “wholly inconsistent with every conclusion except that of guilt,” as long as a “reasonable factfinder” choosing from among reasonable constructions of the evidence “could find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Kelly, 888 F.2d 732, 740 (11th Cir. 1989). “This standard of review applies to both direct and circumstantial evidence.” United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir. 1997). 55 Case: 16-17609 Date Filed: 10/25/2019 Page: 56 of 85

A. Hobbs Act Robbery and § 924(c) Firearm Convictions

As to Counts One and Two, which were tried together at the first trial,

Ochoa’s only contention on appeal is that the government failed to prove his

identity beyond a reasonable doubt. After thorough review of the record, we

conclude there was ample evidence from which the jury reasonably could have

determined that Ochoa was the person who robbed the Brink’s truck on August 15,

2014.

Three witnesses, including the victim, identified Ochoa as the robber in

independent photo lineups. The first witness, who was also the victim, Perez,

testified that he was able to see his assailant’s face “very clearly.” The other two

witnesses, Montenegro and Bermudez, saw the robbery take place and were able to

see the robber as he fled the scene. Montenegro testified that he had seen the

robber’s face as he fled and was “completely sure” of the accuracy of the

identification at the time he made it. The third witness, Bermudez, also made an

identification, although he acknowledged that he was not able to see the robber’s

face very well.

On appeal, Ochoa attempts to attack the credibility of the three witnesses,

arguing, for example, that they “had little opportunity to get a look at the robber.”

But the fact that Ochoa can (and did) impeach the credibility of the witnesses is not

relevant to our inquiry here. We must view the evidence in the light most

56 Case: 16-17609 Date Filed: 10/25/2019 Page: 57 of 85

favorable to the government, which, in this case, means crediting the eye-witness

identifications that were presented to the jury. See Baldwin, 774 F.3d at 721.

Ochoa also incorrectly claims that “the only evidence” against him as to

these charges “were from witnesses who picked him out of a photo lineup.” This

ignores several other significant pieces of circumstantial evidence tying Ochoa to

the robbery. For starters, the government presented evidence discovered during the

search of Ochoa’s residence, including evidence recovered from his bedroom—

specifically large amounts of new shoes and clothing, and a plane ticket to

Nicaragua, all purchased after the robbery—and $12,900 in cash stored in a freezer

and composed entirely of $100 bills, the same denomination of currency taken

from the Brink’s truck.

Ochoa offers potential innocent explanations for all of these pieces of

evidence. In particular, Ochoa notes that the presence of the cash and new

merchandise is consistent with someone running a “home business” out of the

residence, a possibility that Agent Kaelin acknowledged at trial. But the evidence

need not be “wholly inconsistent with every conclusion except that of guilt” for us

to affirm the jury’s verdict. Kelly, 888 F.2d at 740. Instead, we need only

conclude that a reasonable factfinder could, choosing among reasonable

constructions of the evidence, determine that the evidence established guilt beyond

a reasonable doubt. Id. The fact that one reasonable construction of the evidence

57 Case: 16-17609 Date Filed: 10/25/2019 Page: 58 of 85

is consistent with Ochoa’s innocence does not mean the jury’s contrary

construction was necessarily unreasonable.

Beyond the eye-witness identifications and powerful incriminating

circumstantial evidence—especially the cash—the government also established

that a cell phone that Ochoa purchased three days before the robbery had pinged

cell towers in locations consistent with the robber’s escape route as indicated by

the GPS tracker in the bag of stolen cash.

The eye-witness identifications, circumstantial evidence discovered in

Ochoa’s bedroom, and the cell phone evidence, taken together, provided ample

basis for a reasonable factfinder to “find that the evidence establishe[d] [Ochoa’s]

guilt beyond a reasonable doubt.” See id.

B. § 922(g) Felon In Possession Conviction

As to his conviction for knowingly possessing a firearm and ammunition as

a convicted felon, Ochoa argues that the government failed to show that he

possessed the firearm and ammunition that were discovered in the black gun case

outside his residence. “Possession of a firearm may be either actual or

constructive.” United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011).

“Actual possession exists when a person has direct physical control over a thing.”

Henderson v. United States, 575 U.S. ___, ___,135 S. Ct. 1780, 1784 (2015);

United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (“In order to find that

58 Case: 16-17609 Date Filed: 10/25/2019 Page: 59 of 85

a defendant has actual possession, we must find that the defendant either had

physical possession or that he had actual personal dominion over the thing

allegedly possessed.”).

Constructive possession, on the other hand, “exists when a person has

knowledge of the thing possessed coupled with the ability to maintain control over

it.” Derose, 74 F.3d at 1185 (quotation marks omitted). Mere presence near a

firearm is not enough to establish constructive possession. Perez, 661 F.3d at 576.

In order to establish constructive possession, the government was required to

prove, through direct or circumstantial evidence, that the defendant was aware or

knew of the firearm’s presence and had the ability and intent to later exercise

dominion and control over the firearm. See id.; Derose, 74 F.3d at 1185 (“[A]

court may find constructive possession by finding ownership, dominion, or control

over the contraband itself or dominion or control over the premises . . . in which

the contraband was concealed.”).

Section 922(g)(1) makes it “unlawful for any person . . . who has been

convicted in any court of[] a crime punishable by imprisonment for a term

exceeding one year . . . to . . . possess in or affecting commerce[] any firearm or

ammunition.” 18 U.S.C. § 922(g)(1) (emphasis added). The second indictment in

this case charged Ochoa with violating § 922(g)(1) by “knowingly possess[ing] a

firearm and ammunition in and affecting interstate and foreign commerce.”

59 Case: 16-17609 Date Filed: 10/25/2019 Page: 60 of 85

Ochoa argues that the government failed to prove that he possessed both the

firearm and the ammunition. However, it was necessary for the government to

sufficiently establish that he possessed only either one to sustain his § 922(g)(1)

conviction. See United States v. Griffin, 705 F.2d 434, 436 (11th Cir. 1983) (“The

law is well established . . . that where an indictment charges several means of

violation of the statute in the conjunctive, proof of only one of the means is

sufficient to convict.”). In fact, the district court instructed the jury that Ochoa

could be found guilty if it was proved beyond a reasonable doubt that

(1) [Ochoa] knowingly possessed a firearm or ammunition in or affecting interstate or foreign commerce; and

(2) before possessing the firearm or ammunition, [Ochoa] had been convicted of a felony—a crime punishable by imprisonment for more than one year.

Thus, the jury could have convicted Ochoa based on its conclusion that he actually

or constructively possessed the ammunition discovered in the bedroom drawer (the

large capacity magazine and box of bullets), the gun and ammunition discovered in

the black gun case outside the residence, or both.

As to the ammunition in the bedroom drawer, the jury was presented with

sufficient evidence from which it reasonably could have concluded that Ochoa

constructively possessed that ammunition. The government tied Ochoa to the

bedroom through his phones (one of which had on it a photo of Ochoa laying on

the bed in the bedroom), personal identification cards, and travel papers bearing his 60 Case: 16-17609 Date Filed: 10/25/2019 Page: 61 of 85

name—all of which were found in the same bedroom as the ammunition. Ochoa’s

driver’s license, which agents discovered in a car parked on the front lawn, also

listed his address as the residence in question. This evidence allowed the jury to

conclude Ochoa exercised dominion and control over that bedroom, which in turn

allowed the jury to infer he constructively possessed the items, including the

ammunition, found therein. See United States v. Molina, 443 F.3d 824, 830 (11th

Cir. 2006) (concluding sufficient evidence supported a defendant’s conviction for

possession of a firearm in furtherance of a drug trafficking crime and noting that

“[b]ecause the firearm was found in [the defendant’s] bedroom, in the drawer of

the nightstand that also contained . . . her passport . . . a reasonable jury could have

found that [she] exerted ownership, dominion, or control over the firearm”

(quotation marks omitted)); Derose, 74 F.3d at 1185 (“[A] court may find

constructive possession by finding ownership, dominion, or control over the

contraband itself or dominion or control over the premises . . . in which the

contraband was concealed.”). The fact that other people had access to or may

have also occupied the residence does not make the above evidence insufficient.

As to the firearm and ammunition found in the black gun case outside the

residence, the government also presented the jury with sufficient circumstantial

evidence from which the jury reasonably could have determined Ochoa was aware

or knew of the firearm’s presence and had the ability and intent to later exercise

61 Case: 16-17609 Date Filed: 10/25/2019 Page: 62 of 85

dominion and control over the firearm. See Henderson, 575 U.S. at ___, 135 S. Ct.

at 1784; Derose, 74 F.3d at 1185.

Ochoa admitted to Agent Swinerton that there was a gun in a drawer in a

bedroom in the residence, thus establishing his knowledge and awareness of the

firearm’s presence in the residence. Admittedly, the black gun case containing the

.45-caliber handgun and additional .45-caliber ammunition ultimately was

discovered outside the house, not in the bedroom drawer. But the agent who

discovered the black gun case testified that the back door had been unlocked and

that a stray .45-caliber Speer bullet found on the ground near the gun case did not

appear as though it had been outside for any length of time. Further, upon

searching the residence, officers discovered accessories for the .45-caliber handgun

in Ochoa’s bedroom—including a holster and additional .45-caliber ammunition—

but did not discover any other firearms inside or outside the residence.

Based on this, the jury could have drawn reasonable inferences and adopted

the government’s preferred construction of the evidence: that the black case

containing the gun and ammunition had, at one point, been in Ochoa’s bedroom,

and it was moved outside by Ochoa’s brother Angel so as to reduce the chance that

officers would find the gun and ammunition, or be able to tie them to Ochoa.

Having concluded the gun case (containing the firearm and ammunition) had, at

one point, been in the bedroom, the jury then could reasonably have inferred that

62 Case: 16-17609 Date Filed: 10/25/2019 Page: 63 of 85

Ochoa solely or jointly possessed the firearm because, as we discussed above,

there was ample evidence from which the jury could have inferred that the

bedroom was Ochoa’s. See Henderson, 575 U.S. at ___, 135 S. Ct. at 1784;

Derose, 74 F.3d at 1185.

The government also presented testimony from an FBI analyst concerning

DNA recovered from the firearm itself. The evidence was, admittedly,

inconclusive, but the analyst testified that he could not exclude Ochoa as a

contributor to the sample of DNA taken from the firearm. The jury also had before

it Ochoa’s two previous felony convictions involving possession of firearms,

which were properly admitted under Rule 404(b), as evidence bearing on Ochoa’s

state of mind—that is, whether he knowingly possessed the firearm as a convicted

felon. Fed. R. Evid. 404(b).

In light of the totality of the evidence, we readily conclude that a reasonable

factfinder could find that the evidence established, beyond a reasonable doubt, that

Ochoa constructively possessed the ammunition recovered from the drawer and the

firearm and ammunition found in the black gun case. See Kelly, 888 F.2d at 740.

Either possession was sufficient to sustain his § 922(g) conviction.

X. CUMULATIVE ERROR

Ochoa’s last argument concerning his three convictions is that cumulative

error by the district court requires reversal. However, Ochoa has not established a

63 Case: 16-17609 Date Filed: 10/25/2019 Page: 64 of 85

single error, let alone the aggregation of “many errors” that may require a reversal

where the individual errors do not. See United States v. Baker, 432 F.3d 1189,

1223 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington, 547

U.S. 813, 821, 126 S. Ct. 2266, 2273 (2006). Ochoa’s cumulative error claim

therefore lacks merit.

XI. SENTENCING ISSUES

On appeal, Ochoa contends the district court procedurally erred in

calculating his advisory guidelines sentences in both sentencing proceedings. He

challenges two specific rulings, which we address in turn.19

A. Career Offender Under § 4B1.1(a)

As to his sentencing on Counts One and Two, Ochoa argues the district

court improperly classified him as a career offender under U.S.S.G. § 4B1.1(a)

because it erroneously concluded that his Florida convictions for armed robbery

and second-degree murder categorically qualified as crimes of violence under

U.S.S.G. § 4B1.2(a). 20

19 We review de novo the interpretation and application of the guidelines, and we review for clear error a district court’s underlying factual findings. United States v. Tejas, 868 F.3d 1242, 1244 (11th Cir. 2017). “For a factual finding to be clearly erroneous, we must be left with a definite and firm conviction that the court made a mistake.” Id. 20 As to the Florida armed robbery conviction, the PSR on Counts One and Two described the conviction as “armed robbery,” while the PSR on Count Three described it as “attempted armed robbery.” As for the parties, Ochoa’s briefs on appeal consistently refers to it as “armed robbery,” while the government’s brief refers to it simply as “robbery.” We need not reconcile any inconsistences here, however, because, as discussed below, both substantive and attempted 64 Case: 16-17609 Date Filed: 10/25/2019 Page: 65 of 85

Section 4B1.1(a) provides that “[a] defendant is a career offender if” the

following conditions are met:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;

(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a). A defendant who qualifies as a career offender is assigned a

potentially higher offense level and a criminal history category of VI. Id.

§ 4B1.1(b).

In turn, § 4B1.2(a) defines a “crime of violence” as any offense under

federal or state law, punishable by imprisonment for a term exceeding one year

that “has as an element the use, attempted use, or threatened use of physical force

against the person of another.” U.S.S.G. § 4B1.2(a)(1). Because the elements

clause definition of “crime of violence” under § 4B1.2(a) in the Guidelines and the

elements clause definition of “violent felony” under the Armed Career Criminal

Act (“ACCA”) are virtually identical, this Court looks to the Supreme Court’s and

our own decisions applying the ACCA for guidance in considering whether an

robbery under Florida law qualify as “crime[s] of violence” under U.S.S.G. § 4B1.2(a)’s elements clause. In any event, because Ochoa’s brief refers to only armed robbery, not attempted armed robbery, he has abandoned any potential claim about the nature of his Florida robbery conviction. 65 Case: 16-17609 Date Filed: 10/25/2019 Page: 66 of 85

offense qualifies as a crime of violence under the Guidelines, and vice versa.

United States v. Fritts, 841 F.3d 937, 940 n.4 (11th Cir. 2016) (citing United States

v. Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010)).

Both the Supreme Court and this Court have held that a defendant’s Florida

robbery conviction qualified as a violent felony under the ACCA’s elements

clause. Stokeling v. United States, 586 U.S. ___, 139 S. Ct. 544, 554 (2019) (1997

Florida robbery conviction); Fritts, 841 F.3d at 939–44 (1989 Florida armed

robbery conviction). Similarly, this Court has held that Florida attempted robbery

is a crime of violence under U.S.S.G. § 4B1.2(a)’s elements clause. United States

v. Lockley, 632 F.3d 1238, 1240 n.1, 1245 (11th Cir. 2011) (“Lockley’s [2001

Florida] attempted robbery conviction categorically qualifies under the elements

clause as a predicate for the career offender enhancement.”).

More specifically, in Stokeling, the Supreme Court examined Florida law

and determined that under Florida law, the “use of force” necessary to commit

robbery is “force sufficient to overcome a victim’s resistance.” Stokeling, 586

U.S. at ___, 139 S. Ct. at 548–49. The Supreme Court then concluded that the

term “physical force” under the ACCA—that is, “force capable of causing physical

pain or injury”—encompasses offenses “that require the criminal to overcome the

victim’s resistance.” Id. at ___, 139 S. Ct. at 555 (citation and quotation marks

omitted), 550. Having concluded that “force capable of causing physical pain or

66 Case: 16-17609 Date Filed: 10/25/2019 Page: 67 of 85

injury” under the ACCA includes force sufficient to overcome a victim’s

resistance, the Supreme Court found that “the application of the categorical

approach to the Florida robbery statute is straightforward.” Id. at ___, 139 S. Ct. at

555. “Because the term ‘physical force’ in [the] ACCA encompasses the degree of

force necessary to commit common-law robbery, and because Florida robbery

requires that same degree of ‘force,’ Florida robbery qualifies as an ACCA-

predicate offense under the elements clause.” 21 Id.

And in United States v. Jones, 906 F.3d 1325, 1329 (11th Cir. 2018), cert.

denied, 586 U.S. ___, 139 S. Ct. 1202 (2019), this Court held that a conviction for

Florida second-degree murder, pursuant to Florida Statute § 782.04(2), is

categorically a violent felony under the ACCA’s elements clause. 906 F.3d at

1329. In so holding, we relied on our prior decision in Hylor v. United States, 896

21 This Court has discussed the Florida Supreme Court’s decisions concerning this issue before. See Fritts, 841 F.3d at 943. In 1997, the Florida Supreme Court in Robinson v. State, 692 So. 2d 883 (Fla. 1997), pointed to its own 1976 decision in McCloud v. State, 335 So. 2d 257 (Fla. 1976), and stressed that robbery requires “more than the force necessary to remove the property” and in fact requires both “resistance by the victim” and “physical force [by] the offender” that overcomes that resistance, stating: In accord with our decision in McCloud, we find that in order for the snatching of property from another to amount to robbery, the perpetrator must employ more than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender. Robinson, 692 So. 2d at 886. In Robinson, the Florida Supreme Court reaffirmed that “[t]he snatching or grabbing of property without such resistance by the victim amounts to theft rather than robbery.” Id. at 887. The Robinson court further stated that “Florida courts have consistently recognized that in snatching situations, the element of force as defined herein distinguishes the offenses of theft and robbery.” Id. In other words, Robinson reaffirmed that merely snatching property—without resistance by the victim and use of physical force to overcome the victim’s resistance—did not constitute a robbery under Florida law. 67 Case: 16-17609 Date Filed: 10/25/2019 Page: 68 of 85

F.3d 1219 (11th Cir. 2018), ruling that Florida attempted first-degree murder was a

violent felony under the ACCA’s elements clause. Jones, 906 F.3d at 1329. In

Jones, this Court noted that “[t]he only meaningful difference between first- and

second-degree murder in Florida is that first-degree murder requires the element of

premeditation, while second-degree murder does not.” Id. We concluded that

“[t]he mens rea distinction between first- and second-degree murder makes no

difference to our determination under the ACCA elements clause.” Id.

Accordingly, based on the above precedent, we conclude that Ochoa’s

Florida convictions for armed robbery and second-degree murder qualify as crimes

of violence under U.S.S.G. § 4B1.2(a). See Alexander, 609 F.3d at 1253. Thus,

the district court properly determined that Ochoa was a career offender under

§ 4B1.1(a) for purposes of his sentencing on Counts One and Two.22

22 Ochoa acknowledges that we should review for plain error his objection to his career- offender designation in his sentencing on Counts One and Two, as he failed to object to that designation on the grounds now asserted. See United States v. Camacho–Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005). However, as shown above, we have reviewed de novo his career- offender objection because his prior convictions also impact his base offense level on Count Three, and Ochoa preserved his objection as to his prior convictions as to that count. In short, because Ochoa’s objections to the two sentences come down to the same issue—i.e., whether Ochoa’s Florida convictions for robbery and second-degree murder qualify as crimes of violence under § 4B1.2(a)—we apply the less-deferential standard of review and consider Ochoa’s arguments de novo. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006).

68 Case: 16-17609 Date Filed: 10/25/2019 Page: 69 of 85

B. Firearm and Large Capacity Magazine Under § 2K2.1(a)

As to his sentencing on Count Three, Ochoa challenges the district court’s

application of the higher base offense level of 26 to his felon-in-possession

conviction under 18 U.S.C. § 922(g). The base offense level for violations of

§ 922(g) is 26, if these two requirements are met:

(A) the offense involved a . . . semiautomatic firearm that is capable of accepting a large capacity magazine . . . and

(B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 2K2.l(a)(l). The subsection (B) requirement is met because Ochoa’s

two Florida convictions—armed robbery and second-degree murder—qualify as

crimes of violence. For the reasons discussed above, we reject Ochoa’s arguments

that subsection (B) is not satisfied.

As to the subsection (A) requirement, application note 2 to § 2K2.1 defines

“a semiautomatic firearm that is capable of accepting a large capacity magazine” as

one:

that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.

Id., cmt. (n.2). There is no dispute that there was no magazine physically attached

to the firearm found in the black gun case. Nor is there any dispute that the 69 Case: 16-17609 Date Filed: 10/25/2019 Page: 70 of 85

magazine recovered from the bedroom drawer was one that “could accept more

than 15 rounds of ammunition.”

The only question for us to decide, then, is whether the large capacity

magazine found in the bedroom drawer was in “close proximity” to the firearm.

Ochoa argues that the firearm found in the black gun case (the .45-caliber Heckler

& Koch handgun) was found outside of the residence, and, therefore, it was not “in

close proximity to” the large capacity magazine in his bedroom drawer.

We recently addressed the issue of “close proximity” under application note

2 to § 2K1.2 in United States v. Gordillo, 920 F.3d 1292 (11th Cir. 2019). The

defendant in Gordillo similarly challenged the application of a higher base offense

level based on the district court’s finding that his offense involved a

“semiautomatic firearm that is capable of accepting a large capacity magazine.”

Gordillo, 920 F.3d at 1295–96 (quoting U.S.S.G. § 2K2.1(a)(4)(B)(i)). There, as

here, the district court based that ruling on its finding that the firearm was found

“in close proximity” to a large capacity magazine. Id. at 1296. The large capacity

magazine in Gordillo was found in a range bag “about 10 feet away” from a locked

gun case containing the subject firearm. Id.

In Gordillo, this Court discussed the meaning of “close proximity” at length,

reviewed our decisions involving guns “in connection with” drugs, and concluded

that “‘close proximity’ encompasses both physical distance and accessibility.” Id.

70 Case: 16-17609 Date Filed: 10/25/2019 Page: 71 of 85

at 1297–1300. We added that, “[i]n both contexts”—that is, in considering a gun’s

proximity to both drugs and large capacity magazines—“we are looking for a close

connection between the items.” Id. at 1300. This Court determined that, under a

definition of “close proximity” that accounts for both physical distance and

accessibility, “a semiautomatic weapon—even a locked firearm inside a case—is

in ‘close proximity’ to a [large] capacity magazine in a bag no more than ten feet

away in the same small bedroom.” Id. This was because the gun and magazine

“were both physically proximate and readily accessible.” Id.

Applying these principles here, it is apparent that the increased base offense

level of 26 properly applies if we defer to the district court’s explicit conclusion

that Ochoa’s brother, Angel, “went into the house [and] took out the firearm, the

other magazines fully loaded with [.45-caliber] ammunition.” Crediting this

factual determination—which places the gun, at the very least, in the same room, if

not the same drawer, as the large capacity magazine—it is easy to conclude that the

gun and magazine “were both physically proximate and readily accessible” at the

time of the offense, regardless of their respective locations upon their discovery by

law enforcement. See id.

As outlined above, in the light most favorable to the government, the district

court had ample evidence before it to support this factual finding. Ochoa himself

told Agent Swinerton that there was a firearm inside the residence inside a drawer

71 Case: 16-17609 Date Filed: 10/25/2019 Page: 72 of 85

in one of the bedrooms. The authorities recovered no other handgun upon

searching the entire premises. And the ammunition and other accessories found in

Ochoa’s bedroom drawer—a holster, a large capacity magazine containing

.45-caliber ammunition, and a box containing four additional rounds of .45-caliber

ammunition—all were compatible with the .45-caliber pistol found in the black

gun case in the yard.

As such, Ochoa has failed to show that the district court clearly erred in

finding that it was more likely than not that the .45-caliber firearm that was the

subject of his § 922(g) offense was recently removed from Ochoa’s bedroom and

moved outside by Ochoa’s brother. See Tejas, 868 F.3d at 1244. In light of this

finding, the district court correctly concluded that the Count Three offense

involved a semiautomatic .45-caliber firearm that was in close proximity to a large

capacity magazine that was capable of holding more than 15 rounds of .45-caliber

ammunition. U.S.S.G. § 2K2.1(a)(1) & cmt. (n.2).

XII. CONCLUSION

For the reasons stated above, we affirm Ochoa’s convictions and sentences.

AFFIRMED.

72 Case: 16-17609 Date Filed: 10/25/2019 Page: 73 of 85

ROSENBAUM, Circuit Judge, concurring in part and dissenting in part:

I concur in much of the thorough opinion of the Majority, but I write

separately to briefly address two issues. First, I would affirm the district court’s

granting of the government’s motion in limine to restrict the cross-examination of

Officer Starkey, on more limited grounds than does the Majority Opinion. And

second, with respect to the denial of the suppression motion on the public-safety

exception, I would find reversible error, vacate the conviction on Count Three, and

remand for a new trial on that count only.

I.

First, I address the government’s motion in limine to circumscribe the cross-

examination of Officer Starkey. I agree that, on this record, we cannot say the

district court abused its discretion when it limited the cross-examination. But though

I would rely on much of the Majority Opinion’s reasoning in this regard, I do not

share the view that Officer Starkey’s prior misconduct, in which he originally falsely

denied wrongdoing and later separately admitted to basically an effort to obstruct an

investigation into his own conduct, does not bear on the likelihood he may have

“falsif[ied] or manipulate[d] evidence in an ongoing criminal investigation of

another person.” Maj. Op. at 39-40.

I think it could. If Officer Starkey had attempted to manipulate a witness—

73 Case: 16-17609 Date Filed: 10/25/2019 Page: 74 of 85

and to be clear, here, there is no evidence of that—that would have constituted

misconduct. And he would have faced the same temptation to cover that up and lie

about it as he did in the incidents leading to the earlier findings of misconduct against

him.

Nevertheless, here, independent sources were present for the events to which

Officer Starkey testified. Examination of them into Officer Starkey’s conduct was

not limited, and they corroborated Officer Starkey’s testimony. So Ochoa had

several other ways to uncover any misconduct or lies by Officer Starkey in this

particular case.

First, Officer Starkey’s interview of Ochoa was recorded (and another officer

was also present) and significant portions of it were played for the jury. Plus, Ochoa

could have played more, had he desired to do so. The jury’s ability to view the

recording of Officer Starkey’s interview of Ochoa allowed the jury to evaluate for

itself, essentially firsthand, whether Officer Starkey lied or otherwise engaged in

misconduct during the interview.

Second, other officers were present during the search when Officer Starkey

found the money in the freezer. Ochoa could have called these other officers and

cross-examined them, as well as Officer Starkey, about the discovery to see whether

their recollections all matched up. Likewise, the very recovery of the $12,900 in

74 Case: 16-17609 Date Filed: 10/25/2019 Page: 75 of 85

$100 bills also substantiated Officer Starkey’s testimony that he found the money at

Ochoa’s residence.

And third, Montenegro and Bermudez, who each separately identified Ochoa

from a photo lineup Officer Starkey presented, both attested to the procedure Officer

Starkey used to present the photo lineups to them and obtain their identification of

Ochoa. Notably, neither witness shared Officer Starkey’s interest in protecting him

from consequences of wrongdoing, had Officer Starkey engaged in any such

misconduct while presenting the photo lineup to each witness. And as the Majority

Opinion notes, both Montenegro and Bermudez were subjected to rigorous cross-

examination and could have revealed any misconduct by Officer Starkey in

conducting the photo-lineup identifications, had any occurred. In light of the

availability of numerous other sources to allow Ochoa to uncover any misconduct

or untruthfulness by Officer Starkey here, the value of cross-examining Officer

Starkey on his prior misconduct was relatively marginal in this case. And I cannot

conclude that the district court abused its discretion in precluding Ochoa from

inquiring into Officer Starkey’s prior misconduct.1

1 If the other witnesses had in fact provided testimony that implicated Officer Starkey in some relevant wrongdoing, then a motion for reconsideration might have some teeth. But those facts are simply not present here. 75 Case: 16-17609 Date Filed: 10/25/2019 Page: 76 of 85

Plus, even assuming the district court did abuse its discretion in limiting

Officer Starkey’s cross-examination, for those same reasons, any error was

harmless.

II.

Turning to the denial of Ochoa’s motion to suppress his statement about the

gun in the drawer of the bedroom, I would reverse that ruling, vacate the conviction

on Count III, and remand for a new trial on that count only. In particular, I am

concerned that today’s Majority Opinion carries the public-safety exception further

than the reasons justifying its existence support. In so doing, the Majority Opinion’s

interpretation undermines Fifth Amendment protections.

The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V. The

Supreme Court has construed this protection to apply to those subjected to custodial

interrogation by the police. See Miranda v. Arizona, 384 U.S. 436, 460-61 (1966).

To safeguard the Fifth Amendment right to avoid compelled self-incrimination, the

Supreme Court established, as a general rule, that statements made in certain

custodial circumstances, such as those present here, are inadmissible unless the

suspect is “specifically informed of his Miranda rights and freely decides to forgo

those rights.” New York v. Quarles, 467 U.S. 649, 654 (1984).

76 Case: 16-17609 Date Filed: 10/25/2019 Page: 77 of 85

But for every rule an exception exists. And that is the case with Miranda

rights as well. In Quarles, as the Majority Opinion indicates, the Supreme Court

recognized an exception to the Miranda rule for public safety. See Maj. Op. at 44-

45. There, the Court held that when law-enforcement officers ask questions of a

person in custody, that are “reasonably prompted by a concern for the public safety,”

id. at 656, the answers to those questions are admissible against the speaker, even

though the speaker has not received his Miranda warnings, id. at 655-56.

In Quarles, a woman told officers she had been raped by a man who had a gun

and had just entered a particular market. Id. at 651-52. At the market, after a brief

chase, the officers apprehended the defendant because he fit the description the

woman provided. Id. at 652. But when an officer frisked the defendant, he found

only an empty shoulder holster. Id. So before reading the defendant his Miranda

rights, he asked the defendant where the gun was. Id. When the defendant pointed

and said, “the gun is over there,” the officer retrieved the weapon. Id. The trial court

suppressed the statement and the weapon for failure to comply with Miranda. Id. at

652-53.

The Supreme Court concluded that was error, based on the public-safety

exception to Miranda. Id. at 657-58. In reaching this conclusion, the Court reasoned

that the officers urgently needed to find the gun because they had “every reason to

believe” it had been discarded in the busy supermarket and might fall into the hands

77 Case: 16-17609 Date Filed: 10/25/2019 Page: 78 of 85

of an accomplice, an employee, or a customer and present a real risk to those present.

Id. at 657. And we do not want officers faced with the urgency of such situations to

make decisions based on what is best for proving the case instead of what is best for

public and their own safety. Id. at 655-56. Therefore, the Court explained, “the need

for answers to questions in a situation posing a threat to the public safety outweighs

the need for the prophylactic rule protecting the Fifth Amendment’s privilege against

self-incrimination.” Id. at 657.

In United States v. Newsome, 475 F.3d 1221 (11th Cir. 2007), we applied the

public-safety exception in a case that the Majority Opinion has described as “similar

to this one.” Maj. Op. at 45. There, the defendant was taken into custody while in

a motel room. Newsome, 475 F.3d at 1223. While on the ground and before he was

read his Miranda rights, an officer asked him if there was “anything or anyone in the

room that [he] should know about.” Id. The defendant advised the officer that he

had a gun “over there,” and motioned with his head towards a nightstand. Id. When

the officer did not see the gun, he asked the defendant where it was, and the

defendant pointed the officer to a black bag containing the weapon. Id. The

defendant sought to suppress his statements and the gun. Id.

We concluded that under the public-safety exception, the statements and gun

were admissible. Id. at 1224-25. We noted that at the time of entry, the officers

were under the impression that another person was also in the room, so officers could

78 Case: 16-17609 Date Filed: 10/25/2019 Page: 79 of 85

have reasonably been concerned that the other person could be hiding in the room,

ready to ambush them. Id. at 1225. Therefore, we explained, the officers acted

appropriately to protect themselves and other motel guests. Id. Plus, since the

defendant was still in the room where the gun was and they did not know where in

the room the gun was located, they reasonably could have been concerned that the

gun may have remained within reach of the defendant, if he broke the officers’ hold

on him.

And the reason motivating the Supreme Court’s decision in Quarles provides

an additional basis for upholding Newsome’s application of the public-safety

exception. As in the public market space in Quarles, the motel room in Newsome

would be entered later by members of the public: motel employees and other guests.

If a gun was present, it was important for public safety that the officers remove it

before any members of the public encountered it.

In two important ways, Ochoa’s case is not like Quarles or Newsome.

First, here, the officers were searching a private house. So unlike in Quarles

or Newsome, no members of the public were at risk of entering and unsuspectingly

stumbling upon a firearm. Therefore, that justification does not apply here.

The Majority Opinion attempts to blur this distinction from Newsome by

asserting that “Newsome still involved a small, private space that, at the time, was

occupied by the defendant and was not open to the public.” Maj. Op. at 47 n.15.

79 Case: 16-17609 Date Filed: 10/25/2019 Page: 80 of 85

Most respectfully, that argument misses the mark. In Newsome, no members of the

public were at risk of finding the gun while the officers were present in the motel

room and arresting the defendant. Instead, the public-safety risk stemmed from the

possibility that members of the public may have discovered the weapon after the

police left the premises. The person finding the gun could have been an unsuspecting

member of the motel staff or the next guest to occupy that room—possibly even a

child guest. For that reason, the public-safety exception, as explained in Quarles,

indisputably applied to the situation in Newsome. But that situation is not a plausible

possibility in a private home.

The case here also differs from Newsome in another important way. Unlike

in Newsome, where the officer asked generally about “anything or anyone in the

room that [he] should know about,” here, the officer asked whether there were any

“[b]ombs, booby traps, weapons,” or anything else that could be “harmful”

(emphasis added). Of course, the officers should be able to protect themselves

before entering the premises by asking about anything that could, by itself—without

the assistance of a person—be “harmful” to them. For that reason, the public-safety

exception allows officers, in addition to inquiring generally about things that may

be “harmful” to them to ask even specifically about things like “[b]ombs [and] booby

traps.” After all, learning of the existence of these items would likely alter an

officer’s conduct in entering the premises. For example, she might call in a bomb

80 Case: 16-17609 Date Filed: 10/25/2019 Page: 81 of 85

squad to deal with a bomb. Or if she is aware of booby traps and what triggers them,

she will avoid engaging in any triggering action when she enters the place to be

searched. The precise formulation of a question about things that might, in fact, be

harmful to an officer also does not matter. Newsome, 475 F.3d at 1225.

But asking specifically about weapons that cannot fire themselves or

otherwise harm officers without someone operating them is different. The Majority

Opinion reasons that the officers could ask about weapons because “other

individuals might have remained in the residence” and could have had access to any

weapons. See Maj. Op. at 47. That is a valid concern. But it is one that naturally

falls into the category of potential hazards that could independently harm officers

entering the premise. As Agent Swinerton freely conceded, asking about weapons

does nothing to allay the danger of unknown individuals remaining within the

residence.

First, Agent Swinerton explained that the concern arises from the presence of

other people on the premises who might use the firearms, not the presence of the

weapons themselves. He acknowledged that “if there was a gun in [the house] but

nobody in [the house], [that] would [not] pose a risk to [his] team.” That is so

because “[g]uns can’t fire on their own.” Rather, Agent Swinerton continued, “we

need individuals to go with [the guns for the guns to be dangerous to officers], [so]

we need to determine if there’s somebody else in the home.” Indeed, even if a

81 Case: 16-17609 Date Filed: 10/25/2019 Page: 82 of 85

suspect knows of no weapons in the home, other people still in the home could be

carrying their own weapons, creating a threat to entering officers.

What actually occurred here demonstrates those principles. Though Ochoa

told the officers that a gun was in the house, they did nothing directed at the gun

when they conducted their initial safety sweep of the house. Instead, they looked

for only people who could present a risk to them. So the question that could shed

light on any danger non-self-operating weapons could present to officers is whether

any other people are present in the home—not whether weapons are present.

Second, even if an officer asks whether the home has any weapons in it, no

officer entering an unknown home after arresting a “potentially violent suspect,”

Maj. Op. at 47, would cast all caution aside just because the suspect said no weapons

were present. That is so because, as Officer Swinerton explained, law enforcement

“find[s] additional bodies in homes all the time, even after [law enforcement is] told

repeatedly and insistently that there’s nobody else in the house.” In short, officers

proceed with the same caution in the absence of knowledge of a gun that they do if

they know of a firearm’s presence in the home.

The Majority Opinion suggests that is not the case, quoting Agent Swinerton

as having testified that “if agents were to discover ‘additional individuals’ upon

entering the home, ‘and [the agents] know there[] [are] weapons in the house, it[]

[is] going to change, potentially, what [they] do.’” Maj. Op. at 47. But the Majority

82 Case: 16-17609 Date Filed: 10/25/2019 Page: 83 of 85

Opinion misunderstands Agent Swinerton’s testimony. As I have noted, Agent

Swinerton expressly explained that what alters the officers’ behavior is not the mere

existence of guns inside an empty property; it is rather the presence of people who

might have guns that can affect the officers’ entry plan. And since unknown people

in the home can have guns on their persons whether or not the arrestee has any

weapons on the premises, officers must proceed with equal caution, regardless of

whether a defendant advises them that the house contains a firearm.

If learning that a gun is present in what is believed to be an empty home would

not alter the officers’ conduct from what it would be if they did not know whether a

gun was present, the public-safety exception cannot justify asking a suspect about

the presence of weapons. That is so because the question does not assist in

“secur[ing] the [officers’] safety or the safety of the public.” Quarles, 467 U.S. at

659. As a result, the “exigency which justifies” the public-safety exception to

Miranda “circumscribe[s]” to the point of preclusion the officers’ ability to ask

specifically about weapons. Id. at 658-59.

It makes no difference whether the officer asks about only weapons

specifically or instead adds the term to a laundry list of items she may permissibly

inquire about, such as bombs, booby traps, or anything else that might be harmful to

the entering officers. An officer may not cleanse an impermissible pre-Miranda

83 Case: 16-17609 Date Filed: 10/25/2019 Page: 84 of 85

question by burying it in a heap of permissible ones. If she could, Miranda’s holding

would become illusory.

Indeed, because a question about the presence of weapons assists in

“secur[ing] the [officers’] safety” in entering an unknown home, Quarles, 476 U.S.

at 659, no more than a question about the presence of cocaine, it can be justified by

the public-safety exception no more than can a question about the presence of

cocaine. Yet such a question can goad a suspect in custody who has not yet been

advised of his Miranda rights to fully incriminate himself as a felon in possession of

a firearm, as occurred here. And asking a suspect who is clearly in custody

incriminating questions before advising him of his Miranda rights, in the absence of

a public-safety reason for doing so, violates Miranda. So I would find that the

district court erred in concluding that admission of Ochoa’s answer to the officer’s

question as it regarded weapons—and only as it regarded weapons—violated

Ochoa’s Fifth Amendment right.

Because I would find error, I must consider whether the error here was

harmless under Chapman v. California, 386 U.S. 18 (1967). United States v.

Alexander, 835 F.2d 1406, 1411 (11th Cir. 1988). Under the Chapman standard, an

error is not harmless if we cannot say beyond a reasonable doubt that the error “did

not contribute to the [defendant’s] conviction[].” 386 U.S. at 26.

84 Case: 16-17609 Date Filed: 10/25/2019 Page: 85 of 85

Here, the issue is close. On the one hand, the evidence supporting Ochoa’s

conviction for possession of the ammunition that was found in the bedroom drawer

and charged in the indictment was substantial. Ochoa’s Florida driver’s license bore

the address of the residence where the bedroom was located. And that license, in

turn, was found in a car parked at that same address. As for evidence tying Ochoa

to the specific room where the ammunition was located, while the government did

not offer evidence to definitively prove that the room was Ochoa’s, officers found

within that room Ochoa’s phone (with a picture of Ochoa laying on the bed in that

bedroom), personal identification cards, and travel papers bearing his name. This

evidence, in and of itself, supports the conclusion that Ochoa had dominion and

control over the room. See United States v. Molina, 443 F.3d 824, 830 (11th Cir.

2006).

But on the other hand, all of the remaining evidence is circumstantial. And

the first time Count Three was tried, the jury could not reach a verdict—even when

it had the direct evidence of Ochoa’s admission about the gun. Subtracting the only

direct evidence is significant, and I cannot conclude beyond a reasonable doubt that

it would not affect the outcome on Count Three here. For that reason, I would vacate

the conviction on Count Three and remand for a new trial on that count.