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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14731
________________________
D.C. Docket No. 5:13-cr-00018-RS-4
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ALEJANDRO BARRON-SOTO,
a.k.a. Tano,
HECTOR HERNANDEZ,
Defendants–Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(April 26, 2016)
Before ROSENBAUM, JULIE CARNES, and DUBINA, Circuit Judges.
DUBINA, Circuit Judge:
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Alejandro Barron-Soto (“Barron-Soto”) and Hector Hernandez
(“Hernandez”) appeal their jury convictions on one count of conspiracy to
distribute and possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and
846; one count of possession with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and
18 U.S.C. § 2; and, for Barron-Soto, one count of illegal reentry after deportation,
in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(1).
Before a joint trial, Hernandez filed a motion to suppress evidence law
enforcement officers obtained from a warrantless search of his cell phone. The
district court denied the motion following a suppression hearing. Hernandez
challenges that denial on appeal based on the Supreme Court’s subsequent decision
in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014). Hernandez also
argues that the district court erred by admitting evidence of his prior drug
trafficking conviction at trial under Fed. R. Evid. 404(b)(2) and 403. Finally,
Hernandez argues that there was insufficient evidence to support the jury’s verdict,
and the district court’s denial of his motion for judgment of acquittal was in error.
Barron-Soto similarly argues on appeal that the evidence law enforcement officers
obtained as the result of a warrantless search of his cell phone, and other evidence,
was erroneously admitted.
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Previously, we ordered the district court to conduct limited fact finding as to
whether law enforcement was prompted by or would have sought the search
warrant for Hernandez and Barron-Soto’s cell phones despite the initial warrantless
search of those phones. After reviewing the briefs, having the benefit of oral
argument, and reviewing the district court’s order on remand, we affirm.
I. BACKGROUND
A. Facts
On the morning of March 17, 2013, law enforcement officers were
conducting surveillance at the Cancun’s restaurant in Chipley, Florida. DEA
Special Agent John Manna (“Agent Manna”) was in contact with a confidential
informant who arranged a delivery of methamphetamine to the restaurant with
defendant Reyes-Barragan. During surveillance, agents witnessed defendants
Barron-Soto and Heredia-Barron arrive at Cancun’s in a red Mazda and defendant
Hernandez and a female companion arrive in a silver Volkswagen. The defendants
exited the vehicles and walked to the rear of the restaurant. Barron-Soto confirmed
to Reyes-Barragan that the expected methamphetamine was present, and agents
next observed Hernandez drive the silver Volkswagen behind the restaurant.
Another defendant entered the Volkswagen and lights flashed, leading law
enforcement to believe there was a manipulation of an electronic concealed trap
occurring in the vehicle. After ten minutes, Barron-Soto and Heredia-Barron
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departed in the red Mazda and Reyes-Barragan told the informant over the phone
that the methamphetamine was delivered.
Florida Highway Patrol stopped Heredia-Barron and Barron-Soto at Agent
Manna’s request. Barron-Soto attempted to flee from the vehicle but was
apprehended by officers. A drug dog subsequently alerted to the odor of narcotics
in the red Mazda. Heredia-Barron and Barron-Soto’s cell phones were seized.
Meanwhile, Hernandez and the female companion exited the restaurant in the
opposite direction, driving the silver Volkswagen. Florida Highway Patrol, again
at Agent Manna’s direction, stopped the Volkswagen and detained Hernandez and
the female companion.
Law enforcement next made contact with Reyes-Barragan at the rear of the
restaurant and obtained consent to search the restaurant. The search uncovered six
containers that contained approximately 3.6 kilograms of methamphetamine inside
a storage shed at the restaurant. Hernandez, the female companion, and the silver
Volkswagen were brought back to the restaurant where a drug dog alerted to
narcotics around the vehicle. Law enforcement officers found an empty hidden
trap used to hide drugs near the rear passenger seat of the Volkswagen.
Agent Manna directed another agent to conduct a warrantless search of the
cell phones seized from Hernandez and Barron-Soto during their arrests, citing
concerns that other conspirators remained at large and could remotely erase data
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from the phones. Officers took photographs of the observations of the cell phones
during the search, including text messages, incoming and outgoing calls, and
numerous contacts between the four indicted defendants—Hernandez, Reyes-
Barragan, Barron-Soto, and Heredia-Barron.
Agent Manna later applied for and received a search warrant to search the
content of all four defendants’ phones. Agent Manna stated in his warrant affidavit
that in April 2012 the DEA began investigating a drug trafficking organization that
was transporting cocaine, marijuana, and methamphetamine from Texas and
Georgia to Northern Florida. Agent Manna then described his investigation of
Reyes-Barragan, including the use of a confidential informant and the events at
Cancun’s restaurant on March 17, 2013. In a section with the heading “Probable
Cause for all Subject Telephones,” Agent Manna stated:
Based on my training and experience, I have learned that
cellular telephones have the ability to store information in them for
long periods of time. I know that people involved in the distribution
and sale of drugs will often store names and numbers in the phone
directory and speed dialing function of their phones. I have also
learned that persons involved in such illicit activities commonly
communicate with customers or sources of supply through the text or
“SMS” system of their cellular telephones.
Because the Subject Telephones were recovered from subjects
who were arrested relative to the seizure of methamphetamine in the
Northern District of Florida, there is probable cause to believe that the
Subject Telephones will contain evidence of narcotics trafficking.
The warrant affidavit did not mention any evidence obtained during the
warrantless search of Hernandez and Barron-Soto’s cell phones. The affidavit did
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include post-arrest statements made by the four defendants and the results of a
warrantless search of Reyes-Barragan’s cell phone.
B. Procedural History
1. Motion to Suppress
Hernandez filed a pretrial motion to suppress evidence the Government
obtained as a result of the warrantless search of his cell phone, arguing that the law
was unsettled as to whether a suspect’s cell phone could be lawfully searched
incident to his arrest and that there were no reasonable exigent circumstances to
justify the search of his phone. The Government responded that the search of
Hernandez’s cell phone was justified as a search incident to arrest, or, in the
alternative, as a search conducted pursuant to probable cause and exigent
circumstances. Agent Manna testified at the suppression hearing regarding the
events leading up to and following the defendants’ arrests, including the search of
the cell phones and concern that the phones could be remotely wiped prior to the
extraction of relevant data. Hernandez argued that these concerns were
unreasonable given the circumstances of the four defendants’ arrests and the
officers’ ability to disable the cell phones.
The district court denied Hernandez’s motion to suppress. In a written
order, the court found that based on Agent Manna’s training, experience, and the
facts known to him as a result of his investigation, Agent Manna reasonably
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believed: (1) that the defendants may have used the cell phones found in their
possession on the morning of their arrest to communicate with each other or others
participating in the methamphetamine delivery, and (2) that the phones may have
contained evidence of the crime under investigation. Accordingly, the district
court found that Agent Manna had probable cause to believe evidence to support a
crime would be found in Hernandez’s cell phone. In addition, the court determined
that law enforcement’s concern that a delay in the search of the phones may have
resulted in a loss of evidence created exigent circumstances justifying the seizure
and immediate search of the cell phones.
Barron-Soto did not file a pretrial motion to suppress. However, at the joint
trial for Barron-Soto and Hernandez, Hernandez reiterated his objection to the
admission of evidence from the warrantless search of his cell phone. Barron-Soto
then raised the same objection relative to the warrantless search of his cell phone,
which the court overruled by adopting the previous ruling on Hernandez’s motion
to suppress.
2. Appeal
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This panel heard oral argument on the instant appeal on November 19, 2015.
Hernandez and Barron-Soto 1 argued that the district court erred in determining that
the possibility of a remote wipe was an exigent circumstance in light of the
Supreme Court’s decision in Riley, 573 U.S. ___, 134 S. Ct. 2473. We agree, and
the Government did not dispute that the district court erred under Riley. However,
the Government argued that the evidence obtained from Hernandez and Barron-
Soto’s cell phones was admissible under the independent source doctrine, as the
officers would have applied for and obtained a warrant without the preceding
warrantless search.
1
Unlike his co-defendant Hernandez, Barron-Soto did not file a timely pretrial motion to
suppress, but instead waited until after trial had begun to assert that evidence discovered during
the search of his cell phone should be suppressed. See Fed. R. Crim. P. 12(b)(3)(C) and 12(c)(3).
As a general rule, we review for plain error a district court’s ruling on an untimely motion that is
required to be filed prior to trial pursuant to Fed. R. Crim. P. 12(b)(3). See United States v.
Sperrazza, 804 F.3d 1113, 1121 (11th Cir. 2015); accord United States v. Bowers, 811 F.3d 412,
421 (11th Cir. 2016). Yet in this case, the district court was not hearing for the first time at trial
a challenge to the search. Instead it had earlier held a lengthy hearing on Hernandez’s timely
motion to suppress and had issued a written ruling denying that motion. Barron-Soto’s request
that he be permitted to preserve this suppression issue for appeal purposes was essentially a
request that he be allowed to adopt his co-defendant’s earlier motion. Because the district court
permitted him to do so and because Hernandez was entitled to de novo review of the court’s
ruling on his timely suppression motion, we see no good reason why Barron-Soto, who was
permitted to adopt Hernandez’s motion, should not receive the same level of review of the
district court’s order.
Barron-Soto also contends on appeal that his post-arrest statements should have been
suppressed because they were not knowing and voluntary and therefore their admission violated
his Fifth Amendment rights. Because Barron-Soto never objected to admission of these
statements before the district court, we review the claim under a plain error standard. See
Sperrazza, 804 F.3d at 1119. We find no plain error by the district court in failing, sua sponte, to
disallow admission of Barron-Soto’s post-arrest statements.
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The independent source doctrine involves a two-part analysis: (1) whether,
after excising from the search warrant affidavit information gained during the
illegal entry, the remaining information supported a finding of probable cause, and
(2) whether the officer’s decision to obtain a search warrant was “prompted by”
what he observed during the illegal entry. United States v. Noriega, 676 F.3d
1252, 1260 (11th Cir. 2012). In ruling on the motion to suppress, the district court
did not explicitly find that law enforcement would have sought a warrant had they
not first conducted the warrantless search of the codefendants’ cell phones.
Because this determination involves a question of fact, we entered an order
directing the district court to conduct limited fact finding as to “whether law
enforcement was ‘prompted by’ or would have sought the search warrant for
Hernandez and Barron-Soto’s cell phones despite the initial warrantless search.”
Order, United States v. Barron-Soto, No. 13-14731 (11th Cir. Dec. 15, 2015); see
Murray v. United States, 487 U.S. 533, 543, 108 S. Ct. 2529, 2536 (1988) (whether
an officer was prompted to seek a warrant by information gained in an illegal
search is a question of fact); Noriega, 676 F.3d at 1263.
The district court conducted a hearing and examined Agent Manna, whose
affidavit supported the warrant to search Hernandez and Barron-Soto’s cell phones.
After hearing Agent Manna’s testimony and arguments from the parties, the
district court found that the “request for a warrant to search Hernandez’s and
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Barron-Soto’s phones was not prompted by information learned from the initial
warrantless search of the phones, [and] that law enforcement would have sought
the search warrant for Hernandez’s and Barron-Soto’s cell phone despite the initial
limited warrantless search of the phones.” With these findings we may now
address the independent source doctrine and remaining issues on appeal.
II. STANDARDS OF REVIEW
“We review a district court’s denial of a motion to suppress evidence for
clear error as to factual findings and de novo as to its application of the law.”
United States v. Watkins, 760 F.3d 1271, 1282 (11th Cir. 2014). “We may affirm
the denial of a motion to suppress on any ground supported by the record.” Id. We
review de novo whether a search warrant affidavit established probable cause.
United States v. Jiminez, 224 F.3d 1243, 1248 (11th Cir. 2000). We review a
district court’s decision to admit evidence for abuse of discretion. Id. at 1249.
III. DISCUSSION
A. Independent Source Doctrine
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. However, in the event the
government violates the Fourth Amendment in conducting an illegal search, “[t]he
independent source doctrine allows admission of evidence that has been discovered
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by means wholly independent of any constitutional violation.” Nix v. Williams,
467 U.S. 431, 443, 104 S. Ct. 2501, 2508 (1984).
We apply a two-part analysis “to determine whether evidence seized during
the execution of the warrant was discovered independent of the initial [illegal]
entry and is therefore admissible regardless of whether the first entry violated the
Fourth Amendment.” Noriega, 676 F.3d at 1260. The first step is to excise from
the search warrant affidavit any information gained during the alleged illegal entry
and determine whether the remaining information supports a finding of probable
cause. Id. The second step is to determine whether the officer’s decision to obtain
a search warrant was “prompted by” what he observed during the illegal entry. Id.
This is a question of fact. See Murray, 487 U.S. at 543, 108 S. Ct. at 2536.
In the instant case, the warrant affidavit did not include any information
learned from the warrantless search of Hernandez and Barron-Soto’s cell phones.
Therefore we do not excise any information, and we review the affidavit de novo
to determine whether there was probable cause to support a search warrant for the
codefendants’ cell phones. “A sufficient basis for probable cause for a search
exists when under the totality of the circumstances there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Noriega,
676 F.3d at 1261 (quoting United States v. Lopez, 649 F.3d 1222, 1245 (11th Cir.
2011)). “Fair probability” is determined by whether the facts and circumstances
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would lead a reasonably prudent person to believe the place to be searched
contains evidence of a crime. Id.
Here, the warrant affidavit submitted by Agent Manna stated: (1) that law
enforcement expected a methamphetamine delivery at Cancun’s restaurant at 9:00
a.m. on March 17, 2013; (2) that Hernandez, in one car, and Barron-Soto in
another car, arrived at the restaurant around that time and appeared to drop
something off at the back of the restaurant; (3) that soon thereafter, Reyes-
Barragan called the confidential informant to say he had received the expected
methamphetamine; (4) that Hernandez appeared to flee the restaurant parking lot
once he saw a highway patrol car following Barron-Soto’s car; (5) that, after
Hernandez was stopped and detained, officers found a hidden compartment in his
car; and (6) that a drug dog deployed on the car alerted positive for the odor of
narcotics. Further, Agent Manna stated in his affidavit that, in his experience as a
law enforcement officer, drug traffickers often use cell phones to coordinate drug
deals and cell phones are often a source of valuable evidence. We conclude that,
regardless of any information learned from the warrantless search, the information
set forth in Agent Manna’s warrant affidavit clearly sets out facts and
circumstances that support probable cause to issue a search warrant for the
codefendants’ cell phones.2
2
Barron-Soto also contends that officers lacked probable cause to stop his vehicle because he
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The second step of the independent source analysis asks whether law
enforcement’s decision to seek a search warrant was “prompted by” what was
observed during the warrantless search. See Noriega, 676 F.3d at 1260–61. On
limited remand, the district court found that Agent Manna’s decision to apply for a
search warrant in this case was not prompted by the warrantless search of the
codefendants’ cell phones.
In light of the district court’s finding and our conclusion that the information
in the warrant affidavit supported probable cause to issue a search warrant for the
codefendants’ cell phones, we conclude that the evidence obtained from the
execution of the search warrants was admissible under the independent source
exception to the exclusionary rule. Therefore, notwithstanding the Supreme
Court’s decision in Riley, we affirm the district court’s order denying Hernandez
and Barron-Soto’s motions to suppress. See Watkins, 760 F.3d at 1282 (stating
that the court may affirm a district court’s decision to grant a motion to suppress
for any reason supported by the record).
had not committed any traffic violation. This argument is meritless. Based on the above facts,
the investigating officers had probable cause to believe that Barron-Soto and his codefendants
were involved in methamphetamine trafficking. Accordingly, there was probable cause to stop
Barron-Soto’s vehicle. See United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en
banc) (noting that probable cause exists when there is a “fair probability that contraband or
evidence of a crime will be found in a particular place”) (internal quotations marks omitted).
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B. Rule 404(b) Evidence
Hernandez argues that evidence of his prior 2006 drug trafficking conviction
was inadmissible. Hernandez argues that, other than drug possession, the prior
offense and the instant offenses were dissimilar in that: (1) the 2006 offense
involved marijuana, whereas the charged offenses involved methamphetamine;
(2) the 2006 offense involved only .38 kilograms of drugs, whereas the instant
offenses involved over 3 kilograms; (3) in 2006, the drugs were hidden in the gas
tank of a truck, whereas in the instant case, the drugs were wrapped in plastic and
placed inside a car; and (4) in the prior case, he admitted that he had been paid
$10,000 to transport a truck from Mexico to Georgia and that he believed it
contained drugs based on the amount of money he was paid, whereas in the instant
case he maintained his innocence. Hernandez also asserts that the probative value
of the evidence was outweighed by the risk of undue prejudice, especially
considering that the prior offense had occurred over seven years prior.
Rule 404(b) of the Federal Rules of Evidence provides that evidence of a
crime, wrong, or other act is inadmissible to prove that the person acted in
accordance with his character on a particular occasion. Fed. R. Evid. 404(b)(1).
However, such evidence may be admissible to prove motive or intent. Fed. R.
Evid. 404(b)(2). To be admissible under Rule 404(b), the evidence must be (1)
relevant to one of the enumerated issues other than the defendant’s character, (2)
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supported by sufficient evidence to allow a jury to determine that the defendant
committed the act, and (3) not unduly prejudicial under the standard set forth in
Rule 403. United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000). Under
Rule 403, the district court may exclude relevant evidence if its probative value is
“substantially outweighed” by a danger of unfair prejudice, confusing the issues, or
misleading the jury. Rule 403 is an extraordinary remedy to be used sparingly.
United States v. Meester, 762 F.2d 867, 875 (11th Cir. 1985).
In a conspiracy case, a defendant’s “not guilty plea renders the defendant’s
intent a material issue.” United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir.
2005) (internal quotation marks omitted). “Evidence of prior drug dealings is
highly probative of intent to distribute a controlled substance, as well as
involvement in a conspiracy.” United States v. Cardenas, 895 F.2d 1338, 1344
(11th Cir. 1990) (quoting United States v. Hitsman, 604 F.2d 443, 448 (5th Cir.
1979)). Although the amount of time between the prior offense and charged
offense may affect the probative value of the prior offense, the district court is
afforded broad discretion to determine whether the offense is too remote to be
probative. Matthews, 431 F.3d at 1311–12 (citations omitted).
The district court did not abuse its discretion by admitting evidence related
to Hernandez’s prior drug offense. Hernandez’s not guilty pleas put his intent
directly at issue, and prior drug offenses are highly probative of the crimes charged
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against Hernandez. Furthermore, Hernandez’s contention that the prior drug
offense was unduly prejudicial because of factual dissimilarities—drugs
transported for a third party, a smaller amount and different type of drugs, and a
different method of concealment—is unavailing. See, e.g., Cardenas, 895 F.2d at
1344 (different types of drugs, amounts, or locations did not substantially prejudice
the defendant so as to warrant exclusion of prior drug charge). Accordingly,
Hernandez has not shown that the court abused its discretion admitting evidence of
his prior charge or determining that the probative value of the evidence outweighed
the risk of undue prejudice.
C. Sufficiency of the Evidence
On appeal, Hernandez argues that the Government provided insufficient
evidence to prove that he knowingly joined a conspiracy to possess
methamphetamine with the intent to distribute because no witness testified that he
was aware of or participated in the agreement to distribute methamphetamine and
there was no evidence that he was involved in unloading the drugs. He also
contends that the Government provided insufficient evidence to prove that he
knowingly possessed methamphetamine with the intent to distribute. In particular,
the Government provided no evidence that he knew about the methamphetamine
that was delivered, that he intended to sell or deliver it to anyone, that he put the
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methamphetamine in the car he was driving, or that he expected to make money
from the transaction.
“To uphold the denial of a motion for judgment of acquittal, we need only
determine that a reasonable fact-finder could conclude that the evidence
established the defendant’s guilt beyond a reasonable doubt.” United States v.
Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001) (internal quotation marks omitted).
“[W]e examine the evidence in the light most favorable to the government and
resolve all reasonable inferences and credibility evaluations in favor of the jury’s
verdict.” United States v. Massey, 89 F.3d 1433, 1438 (11th Cir. 1996).
To sustain a conviction under 21 U.S.C. § 846, the government must prove
(1) that an illegal agreement existed to possess with intent to distribute a controlled
substance; (2) that the defendant knew of the agreement; and (3) that the defendant
knowingly and voluntarily joined the agreement. United States v. Isnadin,
742 F.3d 1278, 1305 (11th Cir. 2014). To sustain a conviction under 21 U.S.C. §
841(a)(1), the government must prove that the defendant “had knowing possession
of the drugs and an intent to distribute them.” United States v. Cochran, 683 F.3d
1314, 1322 (11th Cir. 2012).
While the Government did not provide direct evidence of Hernandez’s
participation in the agreement to possess with intent to distribute
methamphetamine or of his knowing possession and intent to distribute
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methamphetamine, it provided significant circumstantial evidence of those
elements. Specifically, the jury heard testimony that: (1) Reyes-Barragan told a
police informant he would have 2–3 kilograms of methamphetamine delivered to
Cancun’s restaurant at 9:00 a.m. on March 17, 2013; (2) Hernandez met
Barron-Soto and Heredia-Barron in Troy, Alabama, on the evening of March 16,
2013; (3) earlier, Barron-Soto was in contact with Reyes-Barragan about delivering
methamphetamine; (4) Hernandez, in one car, and Barron-Soto and Heredia-
Barron in another car, arrived at Cancun’s restaurant at 9:07 a.m. on
March 17, 2013; (5) the three men met Reyes-Barragan behind the restaurant,
where he asked whether they brought the drugs, and Barron-Soto replied in the
affirmative; (6) Hernandez then returned to his car and drove it behind the
restaurant; (7) in Hernandez’s presence, Heredia-Barron unloaded
methamphetamine from the car Hernandez had driven; (8) Reyes-Barragan then
told Hernandez, Barron-Soto, and Heredia-Barron that he would pay them for the
methamphetamine after the buyer came with the money; and (9) when Hernandez
saw a highway patrol car following Barron-Soto’s car, he drove away in the
opposite direction.
Finally, the Government also presented evidence that Hernandez had a prior
conviction for drug trafficking, which the jury could weigh against any inference
that Hernandez had no knowledge of the drugs in his car or lacked the intent to
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possess and distribute them. Based on this evidence, we conclude that a reasonable
fact-finder could have found Hernandez guilty beyond a reasonable doubt.
Accordingly, the district court did not err in denying Hernandez’s motion for
judgment of acquittal.
IV. CONCLUSION
For the reasons discussed above, we affirm Barron-Soto’s and Hernandez’s
convictions.
AFFIRMED.
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