United States v. Oscar Rene Diaz

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 16, 2008
No. 07-12849
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________

D. C. Docket No. 06-00011-CR-01-WCO-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OSCAR RENE DIAZ,
a.k.a. Oscar Diaz,
RODRIGO RAMIREZ-CONTRERAS,
a.k.a. Rodrigo Contreras Ramirez,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________

(May 16, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:

Oscar Diaz and Rodrigo Ramirez-Contreras separately appeal their

convictions and sentences for possession with intent to distribute cocaine and

conspiracy to do so, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Ramirez-

Contreras also appeals his conviction for possessing a firearm during a drug

trafficking crime, in violation of 18 U.S.C. § 924(c).1 After a careful review of the

briefs and the record, we affirm.

I.

The first claim of error is raised by Diaz, who challenges the denial of a

motion to suppress evidence from a police search of a business called One-Stop

Construction. When considering a motion to suppress, we review the district

court’s findings of fact for clear error, but its application of law to fact, including

the ultimate decision about whether to suppress, is reviewed de novo. United

States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

The disputed search was of One-Stop Construction. One-Stop was located

in a business complex and, according to the government’s evidence, shared a

common loading dock with at least two other tenants, BAB Steering Hydraulics

and Ambit Corporation. The other tenants believed One-Stop to be suspicious.

1
Diaz was also indicted and tried on this charge, but was acquitted.

2
One tenant called the police and reported (i) that One-Stop received large

shipments of tile, but never sold any tile or undertook any tile contracting, and (ii)

no customers or other members of the public ever seemed to frequent One-Stop,

and even its apparent owner, Diaz, was seldom present. BAB Steering and Ambit

both gave their consent to law enforcement to search the loading dock, and gave

the investigating officer, Jeffrey Shull, a key.

Shull also contacted Metro Rentals, which rented forklifts to One-Stop.

Metro Rentals reported that Diaz wanted the rental forklifts delivered outside,

rather than inside, the One-Stop premises, a demand Metro Rentals thought

unusual and suspicious. Shull asked Metro Rentals to contact him the next time

One-Stop rented a forklift, which it did on January 20, 2006.

After this report from Metro Rentals, the local sheriff’s office began

surveillance of One-Stop. On January 22, 2006, Shull was informed that a tractor-

trailer had arrived at One-Stop, along with Diaz and Ramirez-Contreras in a

separate vehicle. The tractor trailer was initially brought to the loading dock,

whereupon the surveilling officers heard the sounds of heavy machinery; the truck

was then moved to the parking lot.

Without obtaining a warrant, Shull and other law enforcement officers

arrived at One-Stop. They first directed a drug-sniffing dog to sniff the back of the

3
tractor-trailer, which by that point had been moved to the public parking lot. The

dog alerted them that drugs had been present in the truck. Officers then entered the

loading dock. They immediately encountered Ramirez-Contreras, who emerged

into the common loading dock from a door connecting the loading dock with One-

Stop’s premises. The officers identified themselves, and upon being asked,

Ramirez-Contreras stated he had a gun. He was then detained. Ramirez-Contreras

had left the door to One-Stop open. Another officer entered One-Stop and found

Diaz inside. Diaz was detained as part of a protective sweep of the interior of One-

Stop. Neither he nor Ramirez-Contreras offered any resistance.

An officer Mirandized 2 Diaz in English. Diaz then, without requesting an

attorney, verbally consented to a search of One-Stop and also signed a form

consenting to such a search. Although Diaz stated he was fluent in both English

and Spanish, the consent form was in Spanish, and a Spanish-speaking officer

reviewed it with Diaz. Once the consent form was executed, the officers searched

the premises with the drug sniffing dog. The dog indicated that drugs were present

in the pallet of tile next to Diaz. The pallet was opened and almost 40 kilograms of

cocaine were found. It is this evidence that Diaz sought to suppress.

Even when undertaken without a warrant, a search is constitutionally

2
Miranda v. Arizona, 384 U.S. 436 (1966).

4
reasonable if conducted pursuant to consent from a third party with authority to

authorize it, or who reasonably appears to an officer to have such authority. United

States v. Brazel, 102 F.3d 1120, 1148 (11th Cir. 1997) (citations omitted). And a

third party has authority to consent to a search of an area “if he has mutual use of

it, with joint access or control of the area for most purposes.” Id.

Here, Shull obtained consent to search One-Stop’s loading dock from two

sources: the other tenants prior to the raid, and Diaz himself afterwards. Diaz

argues that the other tenants lacked authority to consent to the search and that his

consent to the search was not knowing and voluntary. We consider each argument

in turn.

At the suppression hearing, Diaz contested that the other tenants had

authority to consent to Shull’s entry into, and search of, the loading dock. He

argued that only One-Stop had authority over the loading dock, and thus, had a

reasonable expectation of privacy in it. The district court concluded that the

loading dock was common to all tenants of the property, and thus that the other

tenants had both actual and apparent authority to consent to Shull’s search. This

factual determination is not clearly erroneous. First, the leases signed by all the

tenants in the building did not specifically grant access to the loading dock, nor

otherwise mention it. Second, the other tenants had physical access to the dock,

5
and one testified that his business used it. Third, and perhaps most importantly,

both the landlord and the managers of Ambit and BAB were given keys to the

loading dock. Shull himself got his key from these other tenants. That the other

businesses had keys to give Shull is inconsistent with the notion that One-Stop had

an expectation of privacy in the dock.

Thus, the other tenants had authority to grant Shull access to the loading

dock for a search. That makes the warrantless entry into the loading dock

constitutionally reasonable.3 Once the officers entered the dock and Ramirez-

Contreras announced he had a gun, there was ample cause for a protective sweep of

the dock and interior of One-Stop.

But consent to search the loading dock itself, plus a protective sweep alone,

would not entitle the officers to cut open the closed pallet inside One-Stop. The

other tenants had authority only to consent to a search of the common loading

dock, not to the interior of One-Stop where the pallet of drugs was found. The

3
Diaz argues that Georgia v. Randolph, 547 U.S. 103 (2006), compels the conclusion
that this search was unreasonable because consent was not obtained from Ramirez-Contreras.
This argument badly over-reads Randolph. In Randolph, the defendant was present when police
searched his home; his wife consented to the search but he refused to do so. The Supreme Court
held the search was unreasonable as to the defendant because of his objection. There are two
significant distinctions between this case and Randolph. First, this search was of a business,
where there is a significantly diminished expectation of privacy in comparison to a home. See
United States v. Chaves, 169 F.3d 687, 690 (11th Cir. 1999) (citations omitted). Second, unlike
in Randolph, there is no evidence that Ramirez-Contreras had any possessory right over the one-
Stop premises or that he protested the search of the loading dock or of One-Stop.

6
protective sweep entitled the officers to enter One-Stop, but only to the extent

necessary to ensure they were not in danger. See, e.g., United States v. Delancy,

502 F.3d 1297, 1306 (11th Cir. 2007). In other words, the co-tenant’s consent and

protective sweep justified entering the loading dock, detaining Ramirez-Contreras,

entering One-Stop through the open door, and detaining Diaz, but would not have

permitted the officers to bring a drug dog to sniff the pallet and then cut it open.

Thus, we must also consider whether Diaz’s consent to a search of One-Stop was

voluntary. United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002).

Voluntariness is determined from the totality of the circumstances; pertinent facts

include

whether the defendant was free to leave, whether there was coercive
police procedure, the extent of the defendant’s cooperation or
awareness of a right to refuse to consent, whether the defendant could
refuse to consent, the extent of the defendant’s education and
intelligence, and the defendant’s belief that no incriminating evidence
would be found.

Id. (citations omitted). Here, the district court was correct in concluding that Diaz

voluntarily consented to the search. True, Diaz was arrested in a surprise police

raid. But things cooled off once the area was secured, and it appears several

minutes passed before Diaz signed the consent form. There is no clear error in the

district court’s factual finding that the police did not threaten or intimidate Diaz, or

otherwise treat him coercively in procuring the waiver. Moreover, Diaz’s English

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is excellent, and in any event, the consent form was printed in Spanish and

explained to him in Spanish – he obviously understood what he was being asked to

consent to. Under the circumstances, we agree that consent to search was

voluntarily given. Accordingly, the search did not violate the Fourth Amendment,

and its fruits were admissible.

II.

Next, Diaz argues that the district court erred by denying his motion to sever

his trial from Ramirez-Contreras’s. The two were indicted together and thus

presumptively should be tried together. United States v. Cobb, 185 F.3d 1193,

1197 (11th Cir. 1999). We review the denial of a severance motion for abuse of

discretion, and we will order a new trial only if Diaz can show (i) compelling

prejudice from joinder, (ii) which can be remedied only by severance. See, e.g.,

United States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007) (citations omitted).

There are only two situations where severance is the only permissible remedy:

when there is a serious risk that a joint trial would compromise a specific trial right

of a defendant, or when joinder would prevent the jury from reliably judging a

defendant’s guilt or innocence. Id.

Diaz argues the joinder prejudiced his ability to make his defense and

prevented a reliable judgment about guilt. Diaz’s theory of the case was that

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Ramirez-Contreras delivered the “tile” pallet to the warehouse at One-Stop, but

that Diaz did not know that the pallet was full of cocaine. After his arrest,

Ramirez-Contreras allegedly made a self-incriminating statement to Officer

Walker, which also implicated Diaz by stating that an earlier drug shipment was

opened in Diaz’s presence. Diaz moved for severance prior to trial, anticipating

that Ramirez-Contreras would not testify and arguing that admission of the

unredacted statement through Walker would constitute Bruton 4 error.

In fact, Ramirez-Contreras ultimately testified. Parts of Ramirez-Contreras’s

alleged statement were introduced during the government’s case in chief by

Walker, but the examination of Walker at that time avoided reference to the

statements inculpating Diaz, effectively redacting the statements to avoid Bruton

error. On cross-examination of Ramirez-Contreras by the government, Ramirez-

Contreras denied making any statement inculpating himself or Diaz in drug

activity. Diaz then had an opportunity to cross-examine Ramirez-Contreras about

his statement, obviating any potential Bruton error. See United States v. Arias-

Izquierdo, 449 F.3d 1168, 1184-85 (11th Cir. 2006) (citations omitted). Then,

during the government’s rebuttal case, Walker was recalled to the stand and in the

process, described Ramirez-Contreras’s alleged statement more fully, explaining in

4
Bruton v. United States, 391 U.S. 123 (1968).

9
particular that Ramirez-Contreras told him that Diaz had been present when a prior

shipment of drugs was opened. Thus, Ramirez-Contreras’s statement to Walker

implicating Diaz was properly admissible as impeachment by prior inconsistent

statement.5

Diaz also argues that severance was due because he was prejudiced by the

association with Ramirez-Contreras, who was an illegal alien, possessed a weapon

during the drug transaction, and had a prior drug-related conviction. Yet the jury

was duly instructed to consider each defendant separately, and it did, acquitting

Diaz of possessing a firearm during and in relation to a drug crime, 18 U.S.C. §

924 (c)(1)(A)(i), while convicting Ramirez-Contreras of that offense.

Because no Bruton error occurred and the jury followed its instructions to

consider each defendant separately, Diaz has not shown prejudice warranting

severance and retrial.

III.

Diaz also contends the district court abused its discretion by limiting the

time of his closing argument. The government was given forty minutes for

closing; each defendant was given twenty. We will reverse only if Diaz did not

5
It appears no limiting instruction was given, but no request for such an instruction was
made. The failure to give a limiting instruction is error only when such an instruction is
requested. Fed. R. Evid. 105; United States v. Miranda, 197 F.3d 1357, 1360 (11th Cir. 1999).

10
have the “opportunity to make all legally tenable arguments that are supported by

the facts of the case.” United States v. Gaines, 690 F.2d 849, 858 (11th Cir. 1982)

(citations omitted). And we previously have rejected challenges to closing

argument time in multi-defendant trials where the government received argument

time equal to all the defendants’ time put together. See United States v. Carter,

760 F.2d 1568, 1581 (11th Cir. 1985).

After a review of the record, we find no abuse of discretion in limiting

Diaz’s closing argument. The evidence in the case was not voluminous, and

counsel was able to make his essential points fairly.

IV.

Finally, Diaz challenges his 292-month sentence. The district court found

Diaz liable for 129.55 kilograms of cocaine, resulting in a Guidelines base offense

level of 36. U.S.S.G. § 2D1.1(c)(2). The district court then (i) applied a two-level

enhancement for obstruction of justice, U.S.S.G. § 3C1.1, finding that Diaz

committed perjury when he testified, (ii) applied a two-level enhancement for Diaz

based on Ramirez-Contreras’s possession of a weapon in furtherance of the

conspiracy, U.S.S.G. § 2D1.1(b)(1), and (iii) declined to grant a two-level minor-

role reduction, U.S.S.G. § 3B1.2. The district court thus computed Diaz’s total

offense level as 40, which, combined with a criminal history category of I, resulted

11
in an advisory Guidelines range of 292 to 365 months. U.S.S.G. § 5A. Diaz was

ultimately sentenced to 292 months.

Diaz first challenges the application of the Guidelines, as to both the base

offense level and the two enhancements.6 We review the district court’s factual

findings for clear error but review de novo questions of law arising under the

Guidelines. See, e.g., United States v. Crawford, 407 F.3d 1174, 1177-78 (11th

Cir. 2005).

We begin with the base offense level, which depends on the amount of

cocaine attributable to Diaz. The district court adopted the PSI’s conclusion that

Diaz should be held accountable for 129.55 kilograms of cocaine, as follows. The

raid of One-Stop resulted in the confiscation of 39.55 kilograms of cocaine.

Moreover, according to Walker, Ramirez-Contreras admitted to receiving at least

one other shipment of thirty kilograms. In addition to the shipment admitted to by

Ramirez-Contreras, the government’s documentary evidence reflected that One-

Stop received two additional shipments of tile from the same Mexican factory as

the shipment containing the cocaine stash seized in the raid. Hence, the final

calculation included three shipments estimated at thirty kilograms each, plus the

39.55 kilograms actually seized.

6
Diaz’s brief is unclear about his sentencing challenges. After reviewing it carefully, we
cannot conclude he preserved any argument concerning a minor role reduction.

12
 A base offense level of 36 is appropriate for any amount of cocaine between

50 and 150 kilograms. U.S.S.G. § 2D1.1(c)(2). Because the drugs seized in the

raid totaled 39.55 kilograms, the judge needed to find only ten and a half more

kilograms to properly begin the Guidelines calculation with a base offense level of

36. Given Walker’s statement that Ramirez-Contreras’s admitted a prior shipment

of thirty kilograms, which it was not clear error to credit, it was entirely proper to

attribute over fifty kilograms to both defendants. Nor was there clear error in

estimating the prior shipments at thirty kilograms each based on Ramirez-

Contreras’s statement. The record amply supports the district judge’s

determination of the base offense level.

Next, we address Diaz’s challenge to the two level enhancement for

possession of a weapon. Diaz argues that the enhancement was unwarranted

because he was acquitted by the jury of his § 924(c) charge. But as the Guidelines

commentary makes clear, the enhancement is appropriate where a weapon is

present unless it is clearly improbable that a weapon is connected with the offense.

U.S.S.G. § 2D1.1, comment. n.3. And we have held that the enhancement may be

appropriately applied based on a co-conspirator’s possession of a weapon, even

where the defendant was acquitted of a weapons charge. United States v. Stanley,

24 F.3d 1314, 1322-23 (11th Cir. 1994). For an enhancement based on a co-

13
conspirator’s possession to be warranted, the possessor of the weapon must be

charged and found to have possessed the weapon, and the defendant must be a

member of the conspiracy at the time he did so. Id. All three of these

requirements are satisfied here: Ramirez-Contreras was charged and convicted of

possessing a weapon during the drug transaction, and the evidence was sufficient

to infer that Diaz was involved in the conspiracy at the time of the raid of One-

Stop. Nor is it improbable or unforeseeable that firearms will be present in

unloading a large shipment of narcotics. United States v. Pessefall, 27 F.3d 511,

514 (11th Cir. 1994). The firearm enhancement was appropriate.

We also consider whether the district court erred in applying a two level

enhancement for obstruction of justice. The proffered basis for doing so was that

Diaz perjured himself when he testified at trial. Essentially, Diaz claimed that he

was a legitimate real-estate agent and that, for all he knew, One-Stop was a

legitimate business. Yet there was persuasive evidence that One-Stop had no real

business or public visitors of any sort. Moreover, there was evidence (i) that One-

Stop did no tile contracting, (ii) that the tile shipped there was unusable in Georgia,

(iii) that Diaz knew this from attempting to sell some of the tile One-Stop received

to a nearby retail outlet, and (iv) that despite its unusability, Diaz continued to

arrange for more tile shipments from Mexico. This strongly suggests Diaz was

14
complicit in the drug importation, despite his protestations under oath to the

contrary. The enhancement for perjury was warranted.

Finally, Diaz appears to argue that the district court misapplied the 18

U.S.C. § 3553(a) factors. In undertaking this substantive review of the sentence,

we must consider whether, under the totality of the circumstances, the application

of the § 3553(a) factors was an abuse of discretion. See United States v. Pugh,

515 F.3d 1179, 1190-92 (11th Cir. 2008) (citations omitted). We find no such

abuse here; the district court permissibly balanced the § 3553(a) factors. In

particular, the district court’s reliance on the large quantity of drugs in this case

and on Diaz’s lack of contrition was not an abuse of discretion. Accordingly, we

affirm Diaz’s sentence.

V.

Ramirez-Contreras raises a sole argument on appeal: whether the district

court erred by denying his motion to suppress inculpatory statements he allegedly

made to Agent Walker on the grounds that they were involuntarily made.

Ramirez-Contreras argues that he requested an attorney in the middle of his

interrogation, before he made the incriminating statements. Accordingly, he

contends he adequately invoked his right to remain silent, further interrogation

should have ceased, and statements made after his invocation should be

15
suppressed, including the alleged incriminatory statements (which he denies

making in any event). See, e.g, Coleman v. Singletary, 30 F.3d 1420, 1424 (11th

Cir. 1994). The government disputes this account of the facts, arguing that

Ramirez-Contreras did not ask for an attorney until after the incriminating

statements were made. A Jackson-Denno 7 suppression hearing was held in the

middle of trial, outside the presence of the jury, to resolve this question. Again, we

review the district court’s factual findings for clear error and construe the facts in

the light most favorable to the government, but the resolution of legal and mixed

questions, including the ultimate conclusion about the voluntariness of an alleged

confession, is reviewed de novo. United States v. Barbour, 70 F.3d 580, 584 (11th

Cir. 1995).

It is undisputed that Ramirez-Contreras requested an attorney at some point

in his interrogation; the dispute is over when he did so. At the hearing, Agent

Walker testified that after Ramirez-Contreras was detained and arrested in the raid

on One-Stop, he read Ramirez-Contreras his Miranda rights at some time between

9:00 and 9:30 AM, and that he did so in the presence of other officers. He then

questioned Ramirez-Contreras at One-Stop for two hours or so, during which time

Ramirez-Contreras did not request an attorney and admitted to extensive

7
Jackson v. Denno, 378 U.S. 368 (1964).

16
involvement in drug trafficking. Walker then asked Ramirez-Contreras to contact

clients to whom he supplied cocaine, which Ramirez-Contreras refused to do. It

was at that point, Walker testified, that Ramirez-Contreras asked to speak with an

attorney. Ramirez-Contreras made some calls in an attempt to secure an attorney,

but was unable to do so. The interrogation continued. Ramirez-Contreras

subsequently agreed to make recorded phone calls to his drug clients. Walker took

Ramirez-Contreras to a hotel where drugs were to be exchanged. Ramirez-

Contreras made several phone calls from the hotel, which were recorded by law

enforcement agents, but no buyers appeared. The sting ended when Ramirez-

Contreras received a threat against his family in one phone conversation with a

potential buyer. Walker also testified that Ramirez-Contreras was not threatened,

coerced, or promised anything by the officers throughout the interrogation.

Ramirez-Contreras points to inconsistencies in certain aspects of Walker’s

testimony. The interrogation was not recorded and Walker admitted that his

memory of that day’s events was not very good, particularly with respect to the

times that the various events occurred. Moreover, Walker’s testimony about

certain details of the attempted sting was contradicted by other agents.

Two other officers, Grindle and Shull, testified at the suppression hearing.

They also stated that Ramirez-Contreras was Mirandized early in the interrogation,

17
and that he did not request an attorney until after admitting involvement with

drugs. Unlike Walker, neither was present for the entire interrogation. They also

admitted that they told Ramirez-Contreras he should cooperate, but stated they did

not promise him anything for his cooperation.

Ramirez-Contreras also testified at the suppression hearing. He stated he

was not given Miranda warnings at the outset of the interrogation. He said that

upon being questioned by Walker, he denied any involvement with drugs and

stated that he was being paid $10 per hour to unload the truck. Ramirez-Contreras

also said that Walker was yelling at him, and intentionally misrepresenting his

statements in the notes of the interview. Accordingly, he asked for an attorney

early in the interrogation, but was not allowed to attempt to contact one for some

time. Eventually, the officers brought him a phone book and allowed him to make

some calls to attorneys, but he could not reach one.8 The interrogation then

continued, including the attempt to set up a drug purchase.

According to Ramirez-Contreras, Walker also told him he should cooperate

or he would spend the rest of his life in prison, a threat he reiterated after Ramirez-

8
Ramirez-Contreras proffered records showing he made two calls from his cellular
phone; the first was made at 11:14 AM. Assuming, as Ramirez-Contreras would have us, that
these represent the unsuccessful calls to attorneys, it is apparent that the interrogation had been
going on for about two hours at the time the calls were made. The government argues this
necessarily implies the invocation of the right to counsel occurred after the inculpatory
statement. But the records cannot show whether Ramirez-Contreras was truthful when he said
he invoked his rights earlier but was not allowed to make the call until some time later.

18
Contreras initially refused to make calls to his drug clients and requested an

attorney. Indeed, Ramirez-Contreras said he requested an attorney more than ten

times. After two to three hours of questioning and phone calls, Ramirez-Contreras

was taken from One-Stop to a police station. Walker was still questioning him.

Ramirez-Contreras was receiving calls on his cell phone at this time, but was not

allowed to disclose that he was in police custody. After a stop at the police station,

Ramirez-Contreras was taken to the hotel for the failed sting attempt.

In short, there was conflicting evidence at the hearing as to whether

Ramirez-Contreras was Mirandized before or after giving his inculpatory

statement, and whether he requested a lawyer before or after giving the statement.

Resolving these conflicts required the trial judge to make credibility assessments,

and we afford those assessments substantial deference. See, e.g, United States v.

Pham, 463 F.3d 1239, 1244 (11th Cir. 2006) (citation omitted). The district court

did not clearly err in resolving the evidentiary conflicts to find that Ramirez-

Contreras (i) was properly Mirandized at the beginning of the interrogation, (ii) did

not request a lawyer until after making his incriminating statement, and (iii) was

not threatened by the officers interrogating him. Several government witnesses

testified to this version of events. Although there are some minor inconsistencies

in the officers’ statements, the record does not leave us with a definite and firm

19
conviction that error has occurred, and we will not disturb the district judge’s

credibility determinations and his factual findings about how the interrogation

proceeded. Accordingly, we agree with his decision that Ramirez-Contreras’s

inculpatory statements were voluntarily given, and therefore properly admissible.

AFFIRMED.

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