United States v. Juan Ubaldo-Viezca

398 F. App'x 573
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 6, 2010
Docket09-16341
StatusUnpublished
Cited by1 cases

This text of 398 F. App'x 573 (United States v. Juan Ubaldo-Viezca) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Juan Ubaldo-Viezca, 398 F. App'x 573 (11th Cir. 2010).

Opinion

*575 PER CURIAM:

Juan Ubaldo-Viezca appeals his convictions and 255-month total sentence for importation of five kilograms or more of cocaine and possession with intent to distribute five kilograms or more of cocaine. Ubaldo-Viezca argues that the district court erred in (1) denying his motion to suppress incriminating statements and evidence discovered during a vehicle search and failing to conduct an independent hearing; (2) denying his motion in limine to exclude firearms that were found during a search of his home in Texas; and (3) imposing a substantively unreasonable sentence. For the reasons set forth below, we affirm.

I.

A federal grand jury charged Ubaldo-Viezca with importation of five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952 and 960; and possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Ubaldo-Viezca pled not guilty to both charges.

Prior to trial, Ubaldo-Viezca moved to suppress incriminating statements and evidence discovered during a traffic stop. He argued that he was questioned and advised of his Miranda 1 rights in English, even though he spoke Spanish, and that the officer who conducted the traffic stop did not have reasonable suspicion to continue detaining him after the initial stop.

The government responded that Ubaldo-Viezca lacked standing to challenge the search of a trailer attached to the vehicle in which he was riding, because he was merely a passenger and did not own the vehicle or trailer that were searched. It also argued that the officer who conducted the stop had reasonable suspicion of criminal activity, based on his observations of, and conversations with, Ubaldo-Viezca and the driver.

At the suppression hearing, Will Barnes, an Alabama State Trooper, testified that, on June 26, 2007, he stopped Azecunas Garcia’s vehicle for speeding. The vehicle, an Expedition, was pulling a dual-axle utility trailer. When Barnes approached the vehicle, Ubaldo-Viezca, the passenger, spoke for Garcia and stated that they had not wanted to make any sudden movements because there had been “problems in [their] area with the police.” Garcia informed Barnes that she did not have the registration for the vehicle, although she produced a title and stated that she had recently purchased the vehicle. Barnes instructed Garcia to step out of the vehicle so that he could speak to her alone, because Ubaldo-Viezca “appeared to be attempting to control the stop.” When Barnes noted that Garcia’s name was not listed on the title, Garcia, informed Barnes that she had not purchased the vehicle, but had been given the vehicle as payment for a debt. Barnes asked for Garcia’s proof of insurance, which she could not produce. Garcia stated that she and Ubaldo-Viezca were traveling to North Carolina to purchase cars at an auction, while Ubaldo-Viezca stated that the auction was in South Carolina.

Barnes attempted to verify Garcia’s and Ubaldo-Viezca’s information by calling the Blue Light Operation Center (“BLOC”). While Barnes waited to hear from BLOC, he gave Garcia the warnings he had issued and returned the title and Ubaldo-Viezca’s and Garcia’s licenses. Garcia informed Barnes that she was once arrested for smuggling people into the country, and that she sometimes still smuggled individuals into the country. Garcia also told *576 Barnes that Ubaldo-Viezca was her boyfriend and her business partner, but she did not know his name. Garcia stated that both she and Ubaldo-Viezca owned the trailer, but later stated that the trailer was only in her name. After 20 or 25 minutes, Barnes had not heard from BLOC, so he called again and obtained the information he needed.

The BLOC check revealed that both the Expedition and the trailer were registered to Garcia, that Garcia’s license was valid, and that Garcia had an alias and multiple prior arrests for alien smuggling. The check also revealed that Ubaldo-Viezca was a suspect in an ongoing narcotics investigation. Barnes then asked Garcia for consent to search the vehicle, which Garcia granted. Before Barnes searched the vehicle, Ubaldo-Viezca asked to speak to him in private. Ubaldo-Viezca told Barnes that he was a criminal informant working for a Drug Enforcement Administration (“DEA”) agent named Norris Rogers, who worked out of the Houston office. Ubaldo-Viezca could not produce a phone number for Rogers. A search of the Expedition revealed nothing of evidentiary value. Barnes conducted an “echo test” on the axles of the trailer by striking the axle with his flashlight. The test indicated that something was inside the axle. Because traffic was becoming increasingly heavy, Barnes asked Ubaldo-Viezca to drive the Expedition to the trooper auto shop, where he could take the trailer apart and look inside the axles.

Upon arriving at the trooper shop, Ubaldo-Viezca immediately told Barnes that he needed to speak to him again. Ubaldo-Viezca told Barnes that he was currently working on a deal for the DEA. Barnes then stated “let me guess. There’s dope in the axles.” Ubaldo-Viezca stated that there was. Barnes asked him how much cocaine was inside, and Ubaldo-Viezca responded, “I’m not going to lie. It’s eight kilos.” The officers took apart the trailer and discovered 16 packages, containing a total of 8 kilograms of cocaine, inside the axles. After the cocaine was discovered, Ubaldo-Viezca was advised of his Miranda rights.

Joe Herman, a Special Agent with the Alabama Bureau of Investigation, contacted Agent Rogers, who stated that Ubaldo-Viezca had been a DEA source ten years ago. Ubaldo-Viezca gave Herman written consent to search his residence in Friends-wood, Texas. Inside Ubaldo-Viezca’s residence, agents found a large number of weapons, but no narcotics or large sums of money.

The magistrate issued a report and recommendation (“R&R”), recommending the denial of Ubaldo-Viezca’s motions to suppress. As an initial matter, the magistrate determined that Ubaldo-Viezca lacked standing to challenge the search of the Expedition and trailer, because he was not the driver or owner of either the vehicle or the trailer and, therefore, did not have a legitimate expectation of privacy in either piece of property. The magistrate determined that the duration of the traffic stop was reasonable, in light of the discrepancies in the vehicle’s title and registration, Ubaldo-Viezca’s voluntary effort to talk with Barnes, the time that it took to key in and print the citations, and Barnes’s attempt to contact a BLOC operator. The magistrate also found that Barnes had a reasonable, articulable suspicion that illegal activity was occurring, which justified Barnes’s decision to prolong the stop. The magistrate found that Ubaldo-Viezca’s pre-Miranda incriminating statements were admissible, because Miranda warnings generally are not required during ordinary traffic stops.

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Bluebook (online)
398 F. App'x 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-juan-ubaldo-viezca-ca11-2010.