United States v. Rodriguez

38 F. App'x 244
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 29, 2002
DocketNos. 00-1576, 01-1004
StatusPublished
Cited by1 cases

This text of 38 F. App'x 244 (United States v. Rodriguez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Rodriguez, 38 F. App'x 244 (6th Cir. 2002).

Opinion

[247]*247OPINION

MOORE, Circuit Judge.

Defendants-Appellants Mauricio Rodriguez (“Rodriguez”) and Rafael Diaz (“Diaz”) were convicted of a drug conspiracy in violation of 21 U.S.C. §§ 841 and 846 and a money laundering conspiracy in violation of 18 U.S.C. § 1956(h). They now appeal their convictions and sentences, raising a variety of claims. Because none of these claims has merit, we AFFIRM the defendants’ convictions and sentences.

I

In 1998, while conducting a wiretap on Rodriguez’s cellular phone that had been authorized by the State of New York, John Saager (“Saager”), a detective with the Drug Enforcement Task Force of the New York City Police Department (“NY-DETF”), intercepted Rodriguez’s drug-related conversations with Diaz, who lived in Detroit, Michigan. Based on these interceptions, Special Agent Donald Grace (“Grace”) of the Drug Enforcement Agency obtained a federal court order in Detroit for a wiretap on Diaz’s phones and pager.

Police investigation resulted in the January 17, 1999, seizure of approximately $80,000 in cash from a bag carried by Rodriguez and the February 5, 1999, seizure of two kilograms of heroin from a bag in Rodriguez’s car. On November 3, 1999, the United States (“Government”) filed a fourth superseding indictment against Rodriguez, Diaz, and seven co-defendants. Rodriguez and Diaz were charged with two of the six counts: Count One, for conspiracy to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846, and Count Six, for conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h). Rodriguez and Diaz pleaded not guilty. Six of their co-defendants pleaded guilty; the case against the ninth co-defendant was eventually dismissed.

On January 4, 2000, after holding an evidentiary hearing, the district court denied Rodriguez’s motion to suppress the evidence obtained as a result of the wiretap and the searches of his bag and car. On January 13, 2000, Rodriguez and Diaz proceeded to a jury trial and were convicted of all charges. On May 10, 2000, the district court sentenced Rodriguez to 188 months’ imprisonment on each count, to be served concurrently with an undischarged sentence in New York, a five-year term of supervised release on Count One, and a concurrent three-year term of supervised release on Count Six; it also ordered a special assessment of $100 on each count. On December 11, 2000, the district court sentenced Diaz to imprisonment for 240 months on Count One and 120 months on Count Six, to be served consecutively, and a three-year term of supervised release on both counts, to be served concurrently; it also ordered a special assessment of $100 on each count. These timely appeals followed.

II. United States v. Rodriguez

A. Motion to Suppress

1. Wiretap Evidence

Rodriguez argues that the district court erred in holding that there was probable cause for the wiretap on his phone, which a New York state court had authorized on the basis of an affidavit submitted by Saager and supported by a confidential informant. Rodriguez alleges that this affidavit was constitutionally deficient because it demonstrated “an insufficient showing of veracity of hearsay information [248]*248from an untested drug addict informant.” Appellant’s Br. I at 22. With respect to a motion to suppress, we review the district court’s legal conclusions de novo and factual findings for clear error, viewing the evidence in the light most favorable to the party that prevailed in the district court. United States v. Hurst, 228 F.3d 751, 756 (6th Cir.2000).

A magistrate may issue a search warrant if “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The standard for a wiretap requires a court to judge the evidence “on the totality of the circumstances and in a reasonable and common sense manner.” United States v. Alfano, 838 F.2d 158, 161 (6th Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 64, 102 L.Ed.2d 42 (1988). We pay “great deference ... to the determination of an issuing judge,” which we will not reverse “if the record contains a substantial basis for his probable cause findings.” Id. at 162 (quotation omitted).

In this case, Saager’s affidavit was supported by a confidential informant who was working for the NYDETF for the first time. Therefore, Saager attempted to corroborate the information provided by the informant. First, he analyzed telephone records to substantiate the informant’s allegation that Rodriguez had used the target cellular phone and a former cellular phone to conduct trafficking in narcotics. Saager’s team also corroborated the informant’s prediction that Rodriguez would be at a particular location on a particular date and at a particular time. See Gates, 462 U.S. at 245, 103 S.Ct. 2317 (emphasizing that the “future actions of third parties [are] ordinarily not easily predicted”). Surveillance also tended to confirm the information that Rodriguez or the person who used the target cellular phone drove a gray Oldsmobile.

In Gates, the Supreme Court held that “independent investigative work” that corroborated “major portions of [an anonymous] letter’s predictions” was enough to sustain a magistrate’s determination of probable cause. Gates, 462 U.S. at 244-46, 103 S.Ct. 2317. The Gates Court specifically noted that the corroboration of certain claims could indicate the veracity of other claims: “Because an informant is right about some things, he is more probably right about other facts.” Id. at 244, 103 S.Ct. 2317 (quotation omitted). Although the evidence presented to the judge in this case might not have been enough to convict Rodriguez, it was sufficient to support the issuance of a wiretap on Rodriguez’s phone. We therefore hold that the district court did not err in refusing to suppress the wiretap evidence.

2. Consent to Search

Two searches and seizures are at issue in this case: (1) the January 17, 1999, search and seizure of almost $80,000 from Rodriguez and (2) the February 5, 1999, search and seizure of two kilograms of heroin from Rodriguez’s car. It is well established “that a search authorized by consent is wholly valid” under the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The prosecution is required to show only that the consent was given both freely and voluntarily. Id. In Bustamonte,

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Bluebook (online)
38 F. App'x 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodriguez-ca6-2002.