United States Court of Appeals For the First Circuit
No. 18-1391
UNITED STATES,
Appellee,
v.
GABRIEL RODRÍGUEZ-PACHECO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Howard, Chief Judge, Thompson and Kayatta, Circuit Judges.
Lauren E.S. Rosen, Assistant Federal Public Defender, with whom Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero, Assistant Federal Public Defender, Supervisor, Appeals Section, and Liza L. Rosado-Rodríguez, Research and Writing Specialist, were on brief, for appellant. Francisco A. Besosa-Martínez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
January 15, 2020 THOMPSON, Circuit Judge. Let's start our work with the
big picture: Gabriel Rodríguez-Pacheco ("Rodríguez") was a police
officer for the Puerto Rico Police Department who was accused of
domestic violence, and when some fellow officers showed up at his
mother's house (where he was living) in connection with that
accusation, a warrantless entry into the house and seizure of
Rodríguez's cellphone, camera, and laptop ensued. A later search
of the laptop revealed incriminating evidence of the domestic abuse
charge, as well as images of unrelated criminal conduct that form
the basis for the charges against him in the case now before us.
In the lead-up to his trial, Rodríguez moved to suppress the
electronics and the information gleaned from them, along with
statements he made to the police. The lower court granted the
motion as to some statements Rodríguez made, but denied it as to
others. Important here, the lower court denied Rodríguez's motion
to suppress seized evidence. Rodríguez appealed, and that's where
we come in.
But before we embark upon our analysis, we provide an
up-front spoiler to explain why we forgo both a lengthy beginning-
to-end rundown of the facts (arrest, search, and seizure) and a
comprehensive recap of the lower court's reasoning, ultimately
leap-frogging some of the arguments before us and not even reaching
others. We do this because, for reasons we'll explain, we agree
with Rodríguez on a threshold (literally) issue: the officers'
- 2 - warrantless entry into the house, on the grounds that exigent
circumstances existed (as the lower court found), was
unconstitutional, and, on this record, there is no evidence
demonstrating a different exception to the warrant requirement.
For reasons we will explain, we remand Rodríguez's case to the
district court for further proceedings consistent with this
opinion.
The Facts
As is often the case in the motion-to-suppress context,
the parties here do not share the same view of the facts. But
when we review a challenge to a district court's denial of a motion
to suppress, we are to "'view the facts in the light most favorable
to the district court's ruling' on the motion."1 United States v.
Camacho, 661 F.3d 718, 723 (1st Cir. 2011) (quoting United States
v. Soares, 521 F.3d 117, 118 (1st Cir. 2008)). And "[w]e recite
the key facts as found by the district court, consistent with the
record support, noting where relevant [Rodríguez]'s contrary view
of the testimony presented at the suppression hearing." United
States v. Young, 835 F.3d 13, 15 (1st Cir. 2016) (citing United
States v. Werra, 638 F.3d 326, 328 (1st Cir. 2011)).
1 Here, the facts were found by the magistrate judge who held the suppression hearing. But after Rodríguez objected to the magistrate judge's recommended outcome, 28 U.S.C. § 636(b), the district court, in denying the motion to suppress, adopted the magistrate judge's findings and conclusions.
- 3 - Officer Nelson Murillo-Rivera ("Officer Murillo"), who
works for the Domestic Violence Division in the Ponce region of
Puerto Rico, was off-duty on February 28, 2015 when he was
approached by his wife's coworker (we refer to her -- using common
law enforcement parlance -- as "the victim"), who complained that
Rodríguez, with whom she had once been in a relationship, had been
sending her threatening text messages. Officer Murillo testified
that he saw these complained-of text messages in which Rodríguez
was threatening to publish photos and videos of a sexual nature of
the victim if she did not agree to rekindle their relationship.
Officer Murillo reported the above-described episode to
the director of the domestic violence unit; later,2 he was
instructed by the district attorney to locate and arrest Rodríguez
pursuant to "established procedure."3 According to Officer
Murillo, that procedure is why he did not get a warrant -- he said
that, "according to [the procedure], . . . anyone alleged to have
committed domestic violence must immediately be placed under
arrest." And Officer Murillo testified that, in accordance with
2 The passage of time between events is not crystal clear, particularly the time between the victim describing her complaint to Officer Murillo and the eventual excursion to Rodríguez's neighborhood. 3 The procedure to which Officer Murillo was referring is Police Department General Order No. 2006-4. This procedure reflects what is required by P.R. Laws Ann. tit. 8 §§ 601 et seq., known as the "Law to Prevent and Intervene with Domestic Violence." More on this later.
- 4 - that procedure and because Rodríguez was a police officer, the
proper course of action was to locate and disarm him, explain the
complaint to him, then place him under arrest.
Intending to carry out this procedure, around midnight,
Officer Murillo headed to Rodríguez's house in Yauco, Puerto Rico
with several officers, one of whom was Officer Roberto Santiago
("Officer Santiago").4 The officers had trouble locating
Rodríguez's house until they came across a woman (who happened to
be Rodríguez's sister) -- when the officers indicated that they
were looking for Rodríguez, she led them to their mother's house,
then went inside to tell Rodríguez the police were outside.
Officer Murillo testified that Rodríguez "immediately"
came outside to the front of the house. Officer Murillo introduced
himself, informed Rodríguez that a woman had filed a domestic
violence complaint against Rodríguez, and asked if he knew the
woman. Rodríguez said he knew the woman, and so Officer Murillo
told Rodríguez that the officers needed to seize his service
weapon, and he would have to go to the police station to be
questioned.
Officer Murillo did not handcuff Rodríguez, despite the
point of the visit being to arrest him, and he explained that was
4 The parties dispute how many officers went off to Yauco in search of Rodríguez -- and later, how many officers entered the house -- but we do not get into this since it makes no difference to our conclusion.
- 5 - because Rodríguez "was very cooperative and his family looked like
really decent people."
Officer Murillo asked Rodríguez if he was armed -- he
described the exchange as follows:
. . . I asked him, "where is your weapon?" He said, "It's in my bedroom. I'll come right back and I'll go fetch it." Immediately I told him, "No, I'll go with you. You tell me where the weapon is and I'll seek it." To which he answered me, "Okay, no problem." He made a gesture with his hand and said, "follow me."
Rodríguez testified that he did not consent (verbally or
nonverbally) for Officer Murillo to enter the house.
Officer Murillo followed Rodríguez into the house.
Officer Santiago testified that he saw Officer Murillo follow
Rodríguez into the house and decided to go in as well for the
safety of Officer Murillo.
For the reason we previewed above, we do not spill much
ink to describe the events that unfolded after this -- both in the
house and later at the police station -- but we do provide enough
to contextually round out the story. Once inside the house and
then Rodriguez's bedroom, Officer Murillo retrieved the service
weapon and also seized a Go-Pro camera, a white laptop, and a cell
phone, all of which he believed could be related to the domestic
violence accusation. Officer Santiago testified that he didn't
scan or sweep the bedroom for weapons or anything else that could
pose a threat to his safety, and that Rodríguez was passive during
- 6 - the seizure. Then, at the police station,5 after Officer Murillo
read Rodríguez his Miranda rights and Rodríguez signed a document
indicating that he understood and wanted to invoke those rights,
the two reviewed the complaint against Rodríguez, and Officer
Murillo told Rodríguez he'd be spending the night in a cell.
During this meeting, Rodríguez said (according to Officer
Murillo), "I'm going to ask you for something from the bottom of
my heart" -- "please let me erase something from the computer."
Officer Murillo refused, then took Rodríguez to a cell. The next
day, again according to Officer Murillo, Rodríguez "desperately"
asked Murillo, "Who's coming to look for me, ICE, ICE?"
Murillo got a search warrant for the seized electronics,
and that's what ultimately put Rodríguez on the hook for the
charges levied against him in the case before us -- authorities
found videos and images of Rodríguez engaging in sexual conduct
with the victim, as well as videos and images of Rodríguez engaging
in sexual conduct with several female minors between the ages of
16 and 17 years old. On March 26, 2015, a federal grand jury
indicted Rodríguez on sixteen counts of production of child
pornography, violating 18 U.S.C. § 2251(a) and (e), and another
5 A pre-Miranda conversation took place in the police car en route to the station, too, but Rodríguez successfully moved to suppress statements he made during the ride, so we need not describe them here.
- 7 - count of possession of child pornography involving prepubescent
minors, violating 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).
The Proceedings
Before trial, Rodríguez filed a motion to suppress --
specifically, he said the electronics that were seized and the
files within them, his pre-Miranda statements, and the two post-
Miranda statements all merited suppression. As is relevant to our
analysis today, Rodríguez argued there was no consent to enter the
house, nor did any other exception to the warrant requirement
apply. The government opposed the motion, arguing solely that
Rodríguez had consented to the officers' entry, and it would be
"ludicrous" if officers had to wait outside while Rodríguez went
in to fetch the weapon the officers were there to seize. The
magistrate judge held two hearings, then issued a Report and
Recommendation ("R&R") granting the motion as to the pre-Miranda
statements, but denying it as to everything else.
In keeping with our approach to this point, we limit our
recap of the R&R to that which is germane to our analysis, which,
as we've said, is focused on the officers' entry into the house.
The magistrate judge found that the officers had probable cause to
arrest, and the arrest occurred the moment the police arrived at
Rodríguez's home.6 Critically, the magistrate judge concluded that
6Before us, Rodríguez does not challenge the probable cause to arrest or the moment of the arrest. So for purposes of his
- 8 - the warrantless entry was constitutional, but there was no need to
get into consent: "[i]t is unnecessary to determine whether
[Rodríguez] consented, because officers were authorized under the
exigent circumstances doctrine to enter the home for the limited
purpose of securing the weapon they knew was inside." As to the
seizure that followed the warrantless entry, the magistrate judge
signed off on that as constitutionally permissible in light of the
plain view doctrine.
Rodríguez objected to the R&R, and so the case went to
the district judge for a de novo review. See 28 U.S.C. § 636(b).
Rodríguez asserted that there was no record evidence to support
the exigency determination -- indeed, the government had not even
advanced that theory, so it had not proffered any evidence to
support it. In the Memorandum and Order that followed, the
district judge adopted in full the R&R's "factually and legally
supported" findings and conclusions. Specifically, the district
judge determined that the arrest was valid because the officers
"had probable cause and there were exigent circumstances that
justified entering the home."
In due course, the case went to trial.7 Rodríguez was
found guilty on all counts and sentenced to 262 months on counts
appeal, probable cause is established, and he was arrested as soon as he stepped out of the house. 7 Rodríguez explains that he went to trial to preserve the suppression issues now before us.
- 9 - 1-16 and 240 months for count 17, to be served concurrently with
each other, and a fifteen-year term of supervised release. This
timely appeal followed.
Discussion
In undertaking our review of the denial of the motion to
suppress, we review the lower court's factual findings for "clear
error," Camacho, 661 F.3d at 723, and as to the legal conclusions,
such as "application of the law to the facts . . . and the district
court's ultimate legal decision to grant or deny the motion to
suppress," we review those de novo, id. at 724. "On a motion to
suppress evidence seized on the basis of a warrantless search, the
presumption favors the defendant, and it is the government's burden
to demonstrate the legitimacy of the search." United States v.
Delgado-Pérez, 867 F.3d 244, 250 (1st Cir. 2017) (quoting United
States v. Winston, 444 F.3d 115, 123–24 (1st Cir. 2006)).
To aid in our review, we lay out some tried-and-true Fourth
Amendment principles. It is axiomatic that the Fourth Amendment
requires that all searches and seizures be reasonable, and the
Supreme Court has ruled that reasonableness requires there be
probable cause for the search or seizure and that a warrant is
issued. See U.S. Const. amend IV; Katz v. United States, 389 U.S.
347, 357 (1967). Indeed, "'the Fourth Amendment has drawn a firm
line at the entrance to the house' and warrantless entries into a
home 'are presumptively unreasonable.'" Morse v. Cloutier, 869
- 10 - F.3d 16, 23 (1st Cir. 2017) (quoting Payton v. New York, 445 U.S.
573, 586 (1980)). However, there are exceptions to the warrant
requirement, such as the two at issue in this case: consent and
exigent circumstances. See, e.g., Pagán-González v. Moreno, 919
F.3d 582, 591 (1st Cir. 2019) (noting consent is "a jealously and
carefully drawn exception to the warrant requirement" (quoting
Georgia v. Randolph, 547 U.S. 103, 109 (2006) (internal quotations
omitted))); United States v. Almonte-Báez, 857 F.3d 27, 34 (1st
Cir. 2017) (concluding that exigent circumstances justified a
warrantless entry into an apartment).
Before us, the basic Fourth Amendment principles we just
spelled out are the bedrock of Rodríguez's appellate contentions.
Rodríguez challenges the warrantless entry, arguing that it was
presumptively unreasonable, and, on this record, no exception to
the warrant requirement existed. Homing in on the district court's
findings only, he says there is no record evidence to support an
exigency determination: he was unarmed, had not threatened
violence or been violent (there was no indication the officers
believed he had been or would become violent -- quite the opposite
since he was never handcuffed), had no history of violence, and,
on the facts of his case, the presence of a gun in the house wasn't
enough, on its own, to demonstrate exigent circumstances
warranting entry, especially when the presence of the gun wasn't
- 11 - even connected to the domestic violence complaint that prompted
the officers' visit in the first place.
He's right. Here's how our analysis will go: the record
evidence does not support a finding of exigent circumstances that
comports with our case law; consent to enter was not addressed by
the lower court; so, since a consent finding depends on credibility
determinations that do not exist on this record, and we cannot
make those credibility determinations for ourselves, consent as a
justification for upholding the entry on appeal isn't a viable way
into the house either.8 The upshot of all of this is that, on this
8 To the extent the government points to General Order No. 2006-4 to say the entry into the home was legal or somehow consensual, we cannot agree. There simply is nothing on this record to allow us to do so. Indeed, even assuming such an administrative procedure can permissibly strip those to whom it applies of certain constitutional protections and rights, and further assuming it can operate as an automatic consent to warrantless entry into a home or automatically creates an exigency (the need to find and seize service weapons of those accused of domestic violence), the record is devoid of any explication of how this administrative search/seizure procedure is carried out. See, e.g., Ruskai v. Pistole, 775 F.3d 61, 68 (1st Cir. 2014) (explaining the balancing act of looking at the public interest in the policy and the privacy concerns affected by it, Nat'l Treas. Emps. Union v. Von Raab, 489 U.S. 656, 667-68 (1989), laying out the various considerations to be taken into account when assessing administrative search policies (including gravity of public concerns, how the search advances the public interest, and the degree of interference with individual liberty), and collecting cases outlining variations on this detailed analysis). Here, the government conceded that the Order itself is not even in this record. All we have to go on to assess the validity of the notion that it's legitimate to use this procedure to make an end-run around the unconstitutionality of a warrantless entry is the language of the procedure as described by Officer Murillo. And frankly, that description seems to undercut the government's
- 12 - record, the one exception currently before us does not operate to
excuse the unconstitutionality of the warrantless entry.
So let's discuss exigent circumstances. Recall that in
this case, the magistrate judge determined (and the district court
accepted) that the warrantless entry was permissible due to exigent
circumstances, which we've described as "a fancy way of saying
'there is an emergency or other urgent need.'" Belsito Commc'ns,
Inc. v. Decker, 845 F.3d 13, 19 n.4 (1st Cir. 2016) (quoting United
States v. Allman, 336 F.3d 555, 557 (7th Cir. 2003) (Posner, J.,
for the court)). Generally, "a warrantless entry into a person's
dwelling may be permitted if exigent circumstances arise," United
States v. Samboy, 433 F.3d 154, 158 (1st Cir. 2005) (internal
quotations omitted), and, in order to find exigent circumstances,
"the police must reasonably believe that 'there is such a
compelling necessity for immediate action as will not brook the
delay of obtaining a warrant,'" id. (quoting Fletcher v. Town of
Clinton, 196 F.3d 41, 49 (1st Cir. 1999)). We've explained that
"[t]he exigent circumstances doctrine reflects an understanding
and appreciation of how events occur in the real world," Almonte-
position anyway since it instructs that the person in question be disarmed -- here, given that the facts revolve around the officers' entry into the house to seize Rodríguez's service weapon, it clearly is undisputed that Rodríguez didn't have the gun on him at the time of the warrantless entry. All of this to say, on this record, we reject any argument that General Order No. 2006-4 serves as a means to enter a house without a warrant.
- 13 - Báez, 857 F.3d at 31, observing that "[p]olice officers are often
forced to make split-second judgments -- in circumstances that are
tense, uncertain, and rapidly evolving," id. (quoting Kentucky v.
King, 563 U.S. 452, 466 (2011)). To that end, we have indicated
that the "best examples" of exigent circumstances include "hot
pursuit of a felon, imminent destruction or removal of evidence,
the threatened escape by a suspect, or imminent threat to the life
or safety of the public, police officers, or a person in
residence." Bilida v. McCleod, 211 F.3d 166, 171 (1st Cir. 2000).
Here, the lower court found that Rodríguez's case was
"most similar to the final category" listed above, saying the
exigency was that the police needed to "secur[e] the weapon they
knew was inside." In so reasoning, the magistrate judge relied on
some non-controlling cases to support the conclusion that the
officers didn't have to wait outside while Rodríguez retrieved the
gun, and people being inside the house along with the gun justified
a warrantless entry. See United States v. Shannon, 21 F.3d 77
(5th Cir. 1994); United States v. Guarente, 810 F. Supp. 350 (D.
Me. 1993); United States v. Rodriguez, 503 F. Supp. 15 (D.P.R.
1980). In particular, the magistrate judge leaned on United States
v. Zetterman, No. CR-09-54-B-W, 2009 WL 3831388 (D. Me. Nov. 16,
2009), report and recommendation adopted, No. CR-09-54-B-W, 2010
WL 147805 (D. Me. Jan. 11, 2010), to support his conclusion that
the exigent circumstance was a gun being inside the house, and
- 14 - that exigency entitled the officers to warrantlessly "enter the
home for the limited purpose of retrieving the firearm."
The government tells us this is supportable. Indeed,
the government agrees with the exigency justification below as a
baseline,9 and, by way of explanation, offers the following
reasoning: the police were compelled to go to Rodríguez's house
to execute his arrest pursuant to General Order No. 2006-4; that
same protocol required them to seize Rodríguez's gun; they knew
his gun was inside the house; they also knew Rodríguez was "well
versed in the use of firearms"; and this culminates in the
conclusion that exigent circumstances existed and "any reasonable
arresting officer with knowledge that the suspect has a firearm
would not idly stand by at the front door and let the unaccompanied
suspect retrieve a dangerous weapon." In support, the government
points to United States v. Lopez, 989 F.2d 24, 27 (1st Cir. 1993),
where we upheld a search for a weapon under the exigent
circumstances exception because the search was "proportionate
9 In discussing the government's position on exigency, by the way, we are mindful of the fact that the government has the burden of proof when it comes to demonstrating exigent circumstances. See, e.g., Samboy, 433 F.3d at 158. This is a problematic logistical reality on these facts since the government didn't raise exigency below to justify the warrantless entry (the lower court did that on its own), and therefore the government hadn't introduced evidence to support the officers' supposed belief that exigent circumstances were afoot -- or their reliance on any such exigency to enter the house. Ultimately, as will become apparent from our analysis, this burden hasn't been carried.
- 15 - . . . , limited in its range, [and] specific in its object." Id.
at 27.
But, as Rodríguez counters, the government's position,
like the lower court's before it, is unsupported by our case law.
Lopez, for instance, differs from Rodríguez's case in a few
critical ways that undercut any reliance on it. In Lopez, a
cocaine dealer had recently threatened his victim on-scene with a
sawed-off shotgun (someone called the police and reported as much),
and the victim was still there when the police arrived. 989 F.2d
at 25. The police saw and pursued a person fleeing the scene, who
turned out to be the defendant, Lopez (an associate of the shotgun-
wielding dealer and a self-described authorized user of the
apartment in which the threat occurred), believing at the time
that Lopez did the threatening (as opposed to his associate, the
cocaine dealer). Id. We made it clear there -- in what we called
a close case, id. at 26 -- that those factors played central roles
in our conclusion, especially as to the use and whereabouts of the
firearm at issue: "[t]he most important element [was] that the
police had reason to believe that [the defendant] had a sawed-off
shotgun nearby, which had been used only shortly before to threaten
[the victim]," id.
Here, Rodríguez had threatened (in a generic sense) his
victim, yes, but not with a gun and not face-to-face.
Additionally, he was not armed at any point during his encounter
- 16 - with his fellow officers, nor had he given the officers any
indication that he would turn violent and become a danger to them.
Indeed, they never handcuffed him nor did a protective sweep,
apparently never in fear for their safety as Rodríguez remained
passive, nor did they ever express any concern that some other
resident of the house might access the gun to hide or misuse it.
Moreover, Rodríguez did not flee when the officers showed up, but
instead was, by the officers' own accounts, fully cooperative.
And although the officers in Rodríguez's case knew there was a gun
"nearby,"10 as was the case in Lopez, this gun was not alleged to
have played a role in the recent commission of a violent crime
against a victim who was still on-scene.11 The fact that the
officers knew a gun was in the house, without more, is not
10 Another thing: at oral argument, this court queried whether the protocol-says-we-had-to-enter-to-seize-the-gun rationale would be affected at all if Rodríguez -- arrested, unarmed, under control, but not offering consent to enter -- had been, say, two miles from the house rather than just outside it. The government conceded that the two-mile scenario would require a warrant to enter the house to retrieve the gun. And although the government later tried to walk back that concession (without offering any reasoning to explain the change of heart), on these facts, we see no difference between an unarmed, unthreatening Rodríguez being two miles away or ten yards away -- neither undercuts the need for a warrant. 11 Officers in Lopez also were concerned with securing the scene (a multi-tenant building) and making sure no other potentially violent actors were lurking about. 989 F.2d at 26, 27. Here, no one ever suggests that officers believed there might be others in the house who posed such a threat that exigency justified their warrantless entry.
- 17 - sufficient under our precedent to demonstrate exigent
circumstances.12
With respect to the government's suggestion that it
would be "ludicrous" to let Rodríguez go get the gun so the
officers could carry out their mission of seizing it, all we can
say is that, on these facts, the perceived ludicrousness of a
course of action does not, on its own, create an exigency. And,
although the government points to the inconveniences associated
with the logistics of getting a warrant, no one has asserted that
securing a warrant was not an option or that those inconveniences
would in any way outweigh Rodríguez's Fourth Amendment interests.
In the end, this particular record, viewed in its
totality, does not reflect one of "those crisis situations when
there is compelling need for official action and no time to secure
a warrant." United States v. Irizarry, 673 F.2d 554, 557 (1st
Cir. 1982); see also Samboy, 433 F.3d at 156-57. No emergency, no
urgency, no actual or threatened violence or gun violence, no armed
suspects, no fleeing, no split-second decisions by police in tense
moments, no legal reason not to get a warrant. At bottom, the
12 Like Lopez, the cases cited in the R&R in support of the exigency analysis and conclusion are distinguishable from the facts here in a variety of fundamental ways -- for starters, unlike in those cases, there was no allegation of physical violence here, and certainly not one involving a gun. Those cases simply do not move the needle for us, and we need say no more.
- 18 - facts of this case simply do not square with our exigent-
circumstances case law, and it was error to deny the motion to
suppress on this basis. See generally, Almonte-Báez, 857 F.3d at
31; Decker, 845 F.3d at 19 n.4; Samboy, 433 F.3d at 156-57.
Next Steps
Because we conclude that the entry into the home on the
basis of exigency was unconstitutional, that cannot serve as
justification for the search and seizure that followed. But there
is more. Recall that consent would be another way around the
warrantless entry problem. Indeed, before the lower court, consent
was the government's original and sole theory explaining why the
warrantless entry was not unconstitutional. But the district
court, by way of the R&R, explicitly opted to bypass that argument.
As such, there is no consent determination (whether consent to
enter was given and whether that consent could serve as an
independent basis for the officers' entry) for our review, and the
record in its current state is not sufficient to permit us to
consider and decide the issue in the first instance. We do not
think it appropriate to hold this omission against the government;
the government squarely raised consent as its justification for
the entry and Rodríguez defended on that ground.
Accordingly, we remand this case to the district court
to make factual findings and determine whether consent to the entry
was given. See, e.g., United States v. Gandia, 424 F.3d 255, 265
- 19 - (2d Cir. 2005) (taking a similar approach). This panel retains
jurisdiction over this matter.
- 20 -