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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-16972 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cr-00021-WLS-TQL-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee, versus
LEONARDO HERNANDEZ TRIANA,
Defendant - Appellant.
________________________
Appeals from the United States District Court for the Middle District of Georgia ________________________
(January 14, 2019)
Before WILSON, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
Leonardo Hernandez Triana appeals his conviction, after a jury trial, for
access device fraud and identity theft. He argues the district court erred when it Case: 16-16972 Date Filed: 01/14/2019 Page: 2 of 15
denied his motion to suppress evidence recovered from a search of his vehicle,
rejected his Batson challenges to the prosecution’s decision to strike five African
American jurors, and denied his motion for a judgment of acquittal. After careful
consideration, we affirm.
I. BACKGROUND
A. FACTUAL BACKGROUND
On October 21, 2014, Georgia State Patrol Sergeant Dwayne Massey pulled
over a truck travelling northbound on I-75 in Turner County, Georgia because it
had a tinted license plate cover. A tinted cover violates Georgia law, which
requires license plates to be visible and legible. See O.C.G.A. § 40-2-41 (“No
license plate shall be covered with any material unless the material is colorless and
transparent.”).
Triana was driving the truck. Sergeant Massey asked for his license and
registration, which Triana gave. The truck was registered to Yadina Valdes Diaz,
who was sitting in the passenger seat at the time of the stop. Sergeant Massey
asked if Triana spoke English, to which he responded, “A little bit.” Sergeant
Massey then attempted to explain the problem with the license plate cover, but
Triana “didn’t really seem that he understood.” Triana was able to speak with
Sergeant Massey but did so in “broken English.” Sergeant Massey told Triana to
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get out of the truck, and they walked to the rear of the truck, where Sergeant
Massey pointed out the tinted cover.
Triana explained that the cover was legal in Florida and promised he would
fix it. When Sergeant Massey asked Triana where he was going, Triana explained
he was on his way to Bowling Green, Kentucky. Sergeant Massey next spoke with
the passenger, Diaz, who also told Sergeant Massey they were headed for
Kentucky. Diaz told Sergeant Massey she owned the truck but did not have
identification with her.
Sergeant Massey directed Triana to wait in the truck. Sergeant Massey then
returned to his patrol vehicle, where he logged Triana’s license and asked the
dispatcher to check Triana’s criminal history report. Approximately ten minutes
after initiating the stop, Sergeant Massey printed out a written warning for the
tinted license plate cover. He also radioed another officer who spoke Spanish,
asking for help to communicate with Triana. About one minute later, Sergeant
Massey printed a consent-to-search form. Meanwhile, the dispatcher confirmed
Triana had a valid driver’s license and the vehicle was registered to Diaz.
Shortly thereafter, Sergeant Massey got out of his patrol vehicle. Triana met
him at the back of the truck, where Sergeant Massey handed over a copy of the
written warning and returned Triana’s license and registration. Triana then asked
Sergeant Massey where he could find a gas station or store to get a screwdriver to
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remove the tinted license plate cover. Sergeant Massey replied that the next exit
had a few stores where Triana might stop and find a screwdriver. After answering
Triana’s question, Sergeant Massey observed that in his experience, transporting
large objects like the freezer in the back of Triana’s truck can be a sign of drug
trafficking activity. Following this observation, Sergeant Massey asked Triana if
he had any drugs or weapons in the car. Triana said he did not. Apparently
unconvinced, Sergeant Massey asked Triana if he “had any objection” to Massey
searching the truck for drugs or weapons. Triana did not understand the question
at first but then responded “No, nothing.”1 Sergeant Massey asked Triana to sign a
consent form for the search, but Triana indicated he did not understand the form.
After about a minute of discussing consent, Trooper Mejia arrived on the scene.
Trooper Mejia explained, but did not read, the consent form to Triana in Spanish.
Triana subsequently agreed the officers could search the truck and signed the form.
Sergeant Massey searched the truck with the assistance of a third officer on
the scene. He found a red duffle bag in the back seat. Inside the bag was a pair of
rolled up socks that contained twenty Walmart gift cards and two card “skimmer”
devices, which are used to read electronic financial information from cards. The
officers arrested Triana and Diaz.
1 There is some dispute about whether this answer meant Triana had no objection to the search, or whether he was saying he had nothing illegal in the truck. 4 Case: 16-16972 Date Filed: 01/14/2019 Page: 5 of 15
Later analysis of the gift cards revealed they were encoded with account
numbers from financial institutions, rather than Walmart credit information. With
the account numbers encoded on the card’s magnetic strips, the cards could be
used to access bank account funds. The account numbers on the cards did not
belong to either Triana or Diaz.
B. PROCEDURAL BACKGROUND
Triana and Diaz were charged with two counts of fraud in connection with
access devices under 18 U.S.C. § 1029(a)(3)–(4), and five counts of aggravated
identity theft under 18 U.S.C. § 1028A.
Triana moved to suppress the evidence found in the truck. He argued the
officers did not have a valid reason to stop him and that they unlawfully prolonged
the traffic stop to search the truck. Triana also contended he did not voluntarily
consent to the officers’ search of the truck.
On September 17, 2015, the district court held a suppression hearing. At the
hearing, Sergeant Massey and Trooper Mejia testified about the traffic stop and
their interactions with Triana. The government also presented a video recording of
the stop from the dashcam in Sergeant Massey’s patrol vehicle.
The district court denied the motion to suppress. It found Sergeant Massey’s
actions—including the request for criminal history—did not unreasonably prolong
the traffic stop. As for the time it took for Trooper Mejia to arrive and Triana to
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consent to the search, the district court found that “the traffic stop concluded when
Massey handed Hernandez Triana the warning ticket, and everything that occurred
thereafter was part of a consensual interaction because Hernandez Triana was free
to leave.” The district court also found that, based on Triana’s age and apparent
intelligence, his oral consent to search the truck was “freely and voluntarily given.”
Triana and Diaz proceeded to trial. During jury selection, Triana objected to
five of the government’s six peremptory strikes, arguing they showed a pattern of
racial bias because each of the five jurors struck was African American. The
district court asked the government to provide race-neutral reasons for each strike,
which the government did. The court ultimately rejected Triana’s Batson
challenge, finding that the government’s responses were “more than adequate to
establish that [the strikes] were exercised appropriately and not for some
unconstitutional purposes.”
Sergeant Massey and Trooper Mejia testified during the four-day trial. The
jury also heard from investigators who explained how bank account numbers had
been encoded on the magnetic strips of the Walmart gift cards found in the truck.
Finally, five witnesses testified they had each used a credit or debit card at a Shell
gas station in Greenville, Kentucky, and that the account numbers from their cards
had been encoded on the Walmart gift cards without their knowledge.
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At the close of the government’s case in chief, and again after closing
arguments, Triana moved for a judgment of acquittal, arguing the government
failed to prove joint or exclusive possession of the gift cards and electronic
skimmers in the truck. The district court denied the motion.
The jury found Triana and Diaz guilty on all seven counts. The district court
sentenced Triana to 38-months imprisonment and Diaz to 36-months
imprisonment. This appeal followed. 2
II. ANALYSIS
Triana raises three issues in this appeal. First, he argues the district court
erred in denying his motion to suppress evidence. Next, he alleges the government
violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), by striking five
potential jurors on the basis of race. Finally, he asserts the district court abused its
discretion when it denied his motion for a judgment of acquittal. We address each
argument in turn.
A. FOURTH AMENDMENT VIOLATION
This court reviews “the district court’s findings of fact for clear error and its
application of the law to those facts de novo” when the issue presented on appeal is
whether the district court correctly denied the defendant’s motion to suppress.
2 Both Triana and Diaz appealed, but Diaz’s appeal was dismissed for want of prosecution. We therefore consider only the issues raised in Triana’s appeal. 7 Case: 16-16972 Date Filed: 01/14/2019 Page: 8 of 15
United States v. Epps, 613 F.3d 1093, 1097 (11th Cir. 2010). “In reviewing the
district court’s denial of a motion to suppress, we must take the facts in the light
most favorable to the Government.” United States v. Watkins, 760 F.3d 1271,
1279 (11th Cir. 2014). “Whether a person consented to a search is, as a general
proposition, a matter of fact, and therefore is reviewed for clear error.” Id.
Triana first argues that evidence of the Walmart cards and skimmer devices
should have been suppressed because they were the result of an unlawfully
prolonged traffic stop. We disagree.
The Supreme Court has made clear that officers violate the Fourth
Amendment when they prolong a traffic stop “ ‘beyond the time reasonably
required to complete th[e] mission’ of issuing a warning ticket.” Rodriguez v.
United States, 575 U.S. __, 135 S. Ct. 1609, 1614–15 (2015) (quoting Illinois v.
Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005)). This Court, however,
has recognized two limited exceptions to this rule: first, when officers have an
“objectively reasonable and articulable suspicion that illegal activity has occurred
or is occurring”; and second, if the facts indicate that “the initial detention has
become a consensual encounter.” United States v. Ramirez, 476 F.3d 1231, 1237
(11th Cir. 2007) (quotation marks omitted).
The district court did not err when it found that the traffic stop became a
consensual encounter when Sergeant Massey provided Triana with a copy of the
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written warning and returned to Triana his license and registration. For one, the
dashcam footage reveals that after Triana received all his documents, he asked
Sergeant Massey for directions to the nearest store so he could purchase a
screwdriver to remove the tinted license plate. This strongly suggests a reasonable
person would have felt free to leave. For another, Sergeant Massey did not
immediately respond to Triana’s question with a request to search the truck.
Rather, Sergeant Massey provided Triana with directions and then asked Triana
whether he would mind if Massey asked a question. Only when Triana indicated
he did not mind did Sergeant Massey ask whether Triana had any illegal drugs or
cash in the truck, and following that, whether Triana had any objections to the
officers searching his vehicle.
As we outlined in Ramirez, there is no “bright-line litmus test for whether a
traffic stop is a seizure or is a consensual encounter.” 476 F.3d at 1240 (quotation
marks omitted). But where, as here, the record evidence indicates that the police
officers were not behaving in a coercive manner, the exchange was “cooperative in
nature,” and Triana “had everything he reasonably required to proceed on his
journey,” we conclude that a reasonable person “would have felt free to terminate
the encounter” and decline Sergeant Massey’s request to search the truck. Id. The
conversation between Triana and Sergeant Massey, as well as the questions and
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search that followed, were therefore part of an ongoing, consensual encounter and
did not prolong the original traffic stop. Id.
Neither can he prevail on his argument that his consent was invalid because
it was not “freely and voluntarily” given. As the district court observed, “the
totality of all the surrounding circumstances” weigh in favor of finding that Triana
freely consented to a search of his truck. Schneckloth v. Bustamonte, 412 U.S.
218, 226, 93 S. Ct. 2041, 2047 (1973). Trooper Mejia explained in Spanish the
contents of the consent form and made clear to Triana that the purpose of the
vehicle search would be to look for drugs, firearms, and other contraband. Triana
replied in Spanish that he was fine with the search and that the officers could “go
ahead and search,” because he didn’t have any drugs, firearms, and contraband in
the truck.
Although Trooper Mejia did not advise Triana of his right to refuse, this
failure is not sufficient in and of itself to render Triana’s verbal consent
involuntary. United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999) (“The
mere fact that Phillips did not inform Lorenzo of his right to refuse consent, given
the lack of any coercive behavior on Philips’s part, is insufficient to render
Lorenzo’s consent involuntary.”). This is particularly true when the other relevant
factors point in favor of voluntary consent, as they do here: Triana was an adult at
the time; he did not appear to lack either the education or intelligence necessary to
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understand Officer Mejia’s explanation of the form; and Officer Mejia did not
exhibit coercive behavior. See id. at 1241. In addition, Officer Mejia requested
consent in a language Triana was fluent in, thereby removing any concerns as to
whether Triana’s “limited comprehension of English prevented him from providing
voluntary [verbal] consent.” Id. at 1242.
In light of these facts, the district court did not err when it determined that
Triana freely and voluntarily gave verbal consent to the officers to search the
vehicle. The court’s decision to deny Triana’s motion to suppress was therefore
proper. See United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)
(explaining the district court correctly denied the defendant’s motion to suppress
where record evidence indicated he “verbally consented to the search” and the
“consent was voluntary”).
B. BATSON VIOLATION
Triana next argues the government’s decision to strike five African
American jurors deprived him of a fair and impartial jury. See Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). This argument is without merit.
Batson established that when a “defendant makes a prima facie showing” of
racially motivated preemptory strikes, “the burden shifts to the State to come
forward with a neutral explanation for challenging black jurors.” Id. at 97, 106 S.
Ct. at 1723. Once the government has articulated a race-neutral reason for the
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strike, the district court must weigh the evidence and credibility of the parties and
“determine if the defendant has established purposeful discrimination.” Id. at 98,
106 S. Ct. at 1724; see also Foster v. Chatman, 578 U.S. __, 136 S. Ct. 1737, 1747
(2016). Because the “ultimate question of discriminatory intent represents a
finding of fact,” we review a district court’s conclusion on this last Batson step for
clear error. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245, 1248
(11th Cir. 2014) (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct.
1859, 1868 (1991) (plurality opinion)).
The district court did not clearly err when it found the government’s race-
neutral reasons were “more than adequate to establish that [the peremptory strikes]
were exercised appropriately and not for some unconstitutional purpose.” The
government explained that it struck one juror because she said “she had such
strong ill feelings towards the judicial system,” and the government worried she
would have a “presumption against the government.” The government struck a
second juror because “she listed no prior jobs whatsoever for experience,” and the
government thought jurors without significant work experience would not “be the
best type of juror for this case.” The government struck a third juror because she
served on a criminal jury in federal court in a jurisdiction where the government
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lost at least one case that year. 3 A fourth juror was excluded because she indicated
on her questionnaire “everyone should get another chance like [her] uncle’s killer,”
and a fifth because the government thought she seemed “cavalier” about the
proceedings.
Triana has not presented any evidence that the government’s reasons were
pretextual or otherwise not credible. We therefore cannot say the district court
clearly erred when it determined the government did not strike these jurors on the
basis of race. 4
C. JUDGMENT OF ACQUITTAL
Last, Triana contends the district court erred when it denied his motion for a
judgment of acquittal. Triana was charged with, and convicted of, violating 18
U.S.C. §§ 1029(a)(3), 1029(a)(4), and 1028A, each of which requires proof that a
defendant have knowingly possessed the contraband at issue. Triana argues there
was insufficient evidence presented a trial to prove beyond a reasonable doubt that
he knowingly and actually or constructively possessed the Walmart gift cards and
3 This reason could be characterized as “irrational, silly, [and] superstitious.” United States v. Hughes, 840 F.3d 1368, 1382 (11th Cir. 2016) (quotation marks omitted). By this logic, a prosecutor can strike any juror who serves on a petit jury in any federal district court in the United States of America where the government has lost a case. And yet, our precedent requires that we accept this explanation. See id. 4 To the extent Triana argues these reasons were not sufficiently neutral to pass Batson’s second step, his argument is not supported by the law. As we have said before, the government’s stated reason “need not be a good reason”—only a non-discriminatory one. Hughes, 840 F.3d at 1382 (quotation marks omitted). Each of the five reasons proffered satisfies that minimal requirement. 13 Case: 16-16972 Date Filed: 01/14/2019 Page: 14 of 15
skimming devices. As a result, he argues the district court should have granted his
motion for a judgment of acquittal on all counts. This argument elides the
evidence.
We review de novo a district court’s decision to deny a motion for a
judgment of acquittal on sufficiency of evidence grounds. United States v. Capers,
708 F.3d 1286, 1296 (11th Cir. 2013). As part of our review, we must “consider[]
the evidence in the light most favorable to the Government, and draw[] all
reasonable inferences and credibility choices in the Government’s favor.” Id. “A
jury’s verdict cannot be overturned if any reasonable construction of the evidence
would have allowed the jury to find the defendant guilty beyond a reasonable
doubt.” Id. at 1297 (quotation marks omitted).
The government demonstrated at trial that Triana and Diaz shared an address
and the vehicle was registered to Diaz at that same address. The government also
introduced testimony and evidence that officers found numerous items belonging
to Triana in the vehicle, including two money orders Triana purchased to pay for
the apartment he shared with Diaz more than a month before his arrest, a U-Haul
receipt with Triana’s name from almost three months earlier, and an envelope and
letter addressed to Triana from T-Mobile dated five months before the traffic stop.
A reasonable juror could infer from this that Triana and Diaz functionally shared
ownership of the vehicle and regularly left or stored their possessions in the car,
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including the duffle bag containing the devices and gift cards, which was found
behind Triana’s seat.
There was also evidence that Triana, who said he was unemployed, had a
significant amount of money on his person and items indicating interest in larger
purchases. A reasonable juror could infer that these were the products of card-
skimming practices related to the duffle bag’s contents, further establishing
Triana’s knowing possession of the contraband. 5 Taken together, the evidence was
sufficient to show Triana had some form of control over the contraband in
question, which qualifies as constructive possession. See United States v. Greer,
440 F.3d 1267, 1271 (11th Cir. 2006) (“Constructive possession exists when the
defendant exercises . . . control over the item.”). The district court therefore did
not err when it denied his motion for a judgment of acquittal. See id. (“The
government need not prove actual possession in order to establish knowing
possession; it need only show constructive possession through direct or
circumstantial evidence.”).
AFFIRMED.
5 To the extent Triana argues the government presented insufficient evidence that he “was a willful participant in the crime,” this argument is similarly without merit. A reasonable juror could infer from the same evidence that Triana intended to use the contraband to defraud others. 15