United States Court of Appeals,
Eleventh Circuit.
No. 95-2059
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Martin GONZALEZ, Edwin Nunez, Defendants-Appellants.
Dec. 20, 1995.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-105-Cr-J-16), John H. Moore, II, Chief
Judge.
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
This appeal originally involved two co-defendants, Martin
Gonzalez and Edwin Nunez, but we have severed the cases and issue
separate opinions in each. This opinion addresses only the appeal
by Gonzalez of his conviction for conspiracy to pass and possess
counterfeit money, possession of counterfeit money, and passing
counterfeit money, under 18 U.S.C. §§ 371 and 472. He raises two
issues. First, he contends the district court erred in denying his
motion to suppress evidence. Second, he contends the district
court erred in not affording him a two level offense reduction for
acceptance of responsibility under the United States Sentencing
Guidelines.
I. The Facts
In the late hours of July 1 or early morning hours of July 2,
1994, a bartender at a Daytona Beach nightclub received from a
customer, John Starkie, a twenty-dollar bill, which the bartender
suspected was counterfeit. Starkie was with Martin Gonzalez when
he passed the bill. While the bartender notified management,
Starkie and Gonzalez remained at the bar area. The bartender
pointed the two men out to her superiors. One of the managers
directed Starkie and Gonzalez to a back room of the nightclub.
At approximately 12:30 a.m. police officers were dispatched to
the nightclub. In the presence of an officer, the bartender
identified Starkie as the customer who had passed the counterfeit
bill to her. The officer examined the bill and believed it was
obviously counterfeit because of its texture.
One of the officers asked Gonzalez and Starkie if they had any
money and they reached into their pockets and took out additional
counterfeit bills. Shortly after producing the counterfeit bills,
the men were formally arrested and given a Miranda warning. After
that, several other counterfeit bills were found in the nightclub's
cash registers and brought to the back room.
Daytona Beach police then interviewed Gonzalez and Starkie
separately at the nightclub. Secret Service Special Agent
Pritchard was called to the scene and he also interviewed Gonzalez
and Starkie. Before interviewing the men, Agent Pritchard read
each a Miranda warning. Starkie admitted that he knew the
twenty-dollar bill was counterfeit and that he had passed it, but
he was reluctant to disclose the source of the bills. Pritchard
then allowed Starkie and Gonzalez to speak with each other. After
conferring with Gonzalez, Starkie disclosed that the counterfeit
bills came from an individual named Tony Garcia. Starkie described
Tony Garcia as a "Latino with a black ponytail." Both Starkie and
Gonzalez signed sworn statements, and Starkie led Agent Pritchard
to Garcia's residence. Tony Garcia turned out to be Edwin Nunez.
II. Procedure
A grand jury indicted Gonzalez, Starkie and Nunez on charges
of conspiracy to pass and possess conterfeit money, possession of
counterfeit money, and passing counterfeit money. Before trial,
Gonzalez filed a motion in limine to suppress physical evidence
(the counterfeit bills seized from Gonzalez's person) and
statements. Gonzalez's motion claimed that the police lacked
probable cause to arrest, and reasonable suspicion to detain, him.
The motion further alleged that the police had ordered him to give
them the counterfeit bills.
The magistrate judge consolidated Gonzalez's hearing with that
of his two co-defendants, Starkie and Nunez, both of whom also
filed motions to suppress. After four days of hearings [R11-155-
7], the magistrate judge issued a report and recommendation that
Gonzalez's motion to suppress be denied. The district court
adopted the report and recommendation as to Gonzalez.
Gonzalez then attempted to enter a conditional guilty plea to
preserve his right to appeal the denial of his motion to suppress.
The government opposed a conditional plea. In response, Gonzalez
waived his right to a jury trial. After a bench trial, the
district court found Gonzalez guilty of three counts of possessing
and passing counterfeit bills.
At sentencing, Gonzalez objected to his presentence report
because it did not recommend a two-level adjustment for acceptance
of responsibility pursuant to U.S.S.G. § 3E1.1. The court
overruled the objection, citing as grounds the four-day suppression
hearing. Gonzalez appeals his conviction, contending that the
district court erred in denying his motion to suppress, and that it
was error to deny him an acceptance of responsibility adjustment.
We address each contention in turn.
A. Denial of the Motion to Suppress Evidence
The district court denied Gonzalez's motion to suppress the
counterfeit bills and the statements he made to officers at the
nightclub the evening of his arrest. We review the district
court's findings of fact on a motion to suppress only for clear
error, with the record being viewed in the light most favorable to
the party prevailing below (the government). United States v.
Allison, 953 F.2d 1346, 1349 (11th Cir.1992). We review the
district court's legal conclusions de novo. Id.
The district court found that Gonzalez voluntarily emptied his
pockets to reveal counterfeit bills. Unless Gonzalez was
unlawfully detained at the time he produced those bills, they are
admissible as evidence. The same is true of his statements.
Gonzalez contends that he was unlawfully detained at the time. He
argues that the officers lacked reasonable suspicion to detain him.
It is well settled that a police officer may detain a person
under investigation when the officer has a reasonable suspicion
that the person is involved in criminal activity. United States v.
Tapia, 912 F.2d 1367, 1370 (11th Cir.1990). Reasonable suspicion
is determined from the totality of the circumstances. United
States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585-86, 104
L.Ed.2d 1 (1989). Although this standard is less demanding than
probable cause, the Fourth Amendment requires that the officer have
some minimal objective justification for the stop. Id. at 7, 109
S.Ct. at 1585. "Such facts may be derived from "various objective
observations, information from police reports, if such are
available, and consideration of the modes or patterns of operation
of certain kinds of lawbreakers.' " United States v. Williams, 876
F.2d 1521, 1524 (11th Cir.1989) (quoting United States v. Cortez,
449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).
Gonzalez contends that the police did not have reasonable
suspicion to detain him because he was not identified as having
passed a counterfeit bill; he was merely present when Starkie
passed a counterfeit bill. We have recognized that a person's mere
presence at the scene of a crime, without more, does not support a
finding of probable cause to arrest, e.g., Wilson v. Attaway, 757
F.2d 1227, 1238 (11th Cir.1985), but the issue before us is not
probable cause to arrest. The issue is reasonable suspicion to
detain. The police did not detain Gonzalez merely because he was
present at the nightclub. Gonzalez was with Starkie at the
nightclub and was standing beside him when Starkie passed the
counterfeit bill. A person's proximity to a person whom officers
have probable cause to believe is committing a crime may be
considered as a factor in assessing reasonable suspicion. United
States v. Sink, 586 F.2d 1041, 1047 (5th Cir.1978); United States
v. Silva, 957 F.2d 157, 159-61 (5th Cir.), cert. denied, --- U.S.
----, 113 S.Ct. 250, 121 L.Ed.2d 182 (1992).
The officers were acting on more than an inchoate and
unparticularized suspicion here. See United States v. Worthington,
544 F.2d 1275, 1280 (5th Cir.), cert. denied, 434 U.S. 817, 98
S.Ct. 55, 54 L.Ed.2d 72 (1977). We are convinced that the district
court properly applied the law to its factual findings in deciding
that the police had reasonable suspicion to detain Gonzalez for
investigation. The evidence voluntarily produced, and statements
voluntarily made, by Gonzalez during the lawful pre-arrest
investigation was admissible against him.
B. The Sentencing Guidelines Issue
Gonzalez also contends that the district court erred by
refusing to reduce his offense level for acceptance of
responsibility under section 3E1.1 of the United States Sentencing
Guidelines. Section 3E1.1 provides that a defendant who "clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility for his criminal conduct" may receive a two-level
decrease in his offense level. U.S.S.G. § 3E1.1(a). We review the
district court's determination under section 3E1.1(a) for clear
error. United States v. Carroll, 6 F.3d 735, 739 (11th Cir.1993).
We have stated numerous times that "[t]he district court is in a
unique position to evaluate whether a defendant has accepted
responsibility for his acts, and this determination is entitled to
great deference on review." United States v. Pritchett, 908 F.2d
816, 824 (11th Cir.1990).
Comment 2 to section 3E1.1 provides that "[t]his adjustment is
not intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements
of guilt, is convicted, and only then admits guilt and expresses
remorse." Gonzalez maintains that he accepted responsibility
because, apart from his challenge to the admissibility of the
evidence, he did not testify and deny actual guilt, and he saved
the court time by: (1) offering a conditional plea (rejected by
the government); (2) waiving his right to a jury trial; and (3)
stipulating to facts based upon transcripts of the motion hearing.
Comment 2 to section 3E1.1 states that if a defendant elects
to go forward with trial, it is a "rare situation" when the
defendant may nonetheless qualify for acceptance of responsibility.
Such a rare situation may exist when a defendant goes to trial only
to "preserve issues that do not relate to factual guilt." The
examples the comment gives of matters unrelated to factual guilt
are constitutional challenges to a statute and challenges to the
applicability of a statute to specific conduct. Those examples are
further removed from contesting "factual guilt" than is a challenge
to the admissibility of the evidence establishing factual guilt.
Gonzalez was charged with possessing and passing counterfeit
twenty-dollar bills. The dispositive evidence was the evidence he
sought to suppress—the counterfeit bills found in his pocket and
his statements. This evidence was sufficient, and perhaps
necessary, to support his conviction. By challenging the
admissibility of the essential evidence against him, Gonzalez
attempted to avoid a determination of factual guilt and to thereby
escape responsibility for his crime. In view of the evidence,
Gonzalez's only practical defense to the charges was to challenge
the admissibility of the seized counterfeit bills and his
statements. And he did just that. Accordingly, the district court
concluded that Gonzalez was not entitled to a reduction for
acceptance of responsibility. Under these circumstances, the
district court's rejection of the acceptance of responsibility
reduction was not clear error.
Gonzalez cites United States v. Kimple, 27 F.3d 1409, 1413
(9th Cir.1994), for the proposition that the district court, in
determining a defendant's acceptance of responsibility, cannot
consider any constitutionally protected conduct. In that case the
defendant, like Gonzalez, filed a motion to suppress evidence, and
there was a hearing on that motion, which the defendant ultimately
lost. The Ninth Circuit said that "a defendant's exercise of
[constitutional] rights at the pretrial stage should not in and of
itself preclude a reduction for timely acceptance," and it held
that the defendant was entitled to receive the acceptance of
responsibility reduction if he pleaded guilty before the
prosecution began meaningful trial preparations and before the
district court unnecessarily expended its resources. Id. The
court expressly limited its holding, however, stating:
We decide only that given the facts of this particular case,
the district court did not inefficiently expend its judicial
resources in ruling on the pretrial motions. We do not
attempt, however, to set forth specific examples in which the
use of judicial resources would preclude an additional
one-point reduction; rather, such determinations should be
made on a case-by-case basis.
Id. at 1413 n. 4.
Kimple left the district courts of the Ninth Circuit with the
ability to refuse an acceptance of responsibility reduction when
the district court has unnecessarily expended its resources. Even
if we were to adopt Kimple 's reasoning, refusal of the sentencing
reduction in this case would still be appropriate. The district
court conducted hearings on the defendants' motions to suppress for
four days. Even if only a portion of those four days was devoted
to Gonzalez's motion, we could not say that it was clear error for
the district court to refuse to apply the reduction. Moreover,
Gonzalez never pleaded guilty. He required the district court to
expend additional resources conducting a bench trial. Thus, even
if we were to adopt the reasoning of Kimple, this case would be
distinguishable.
The district court's consideration at sentencing of
Gonzalez's efforts to put the government to the test by fighting
the essential evidence against him, and his failure to
unconditionally plead guilty, does not impermissibly punish
Gonzalez for exercising his constitutional rights. United States
v. Henry, 883 F.2d 1010, 1011 (11th Cir.1989) ("Section 3E1.1 may
well affect how criminal defendants choose to exercise their
constitutional rights. But "not every burden on the exercise of a
constitutional right and not every encouragement to waive such a
right is invalid.' " (quoting Corbitt v. New Jersey, 439 U.S. 212,
219, 99 S.Ct. 492, 493-97, 58 L.Ed.2d 466 (1978))). It was not
clear error for the district court to refuse to afford Gonzalez an
acceptance of responsibility sentencing reduction.
III. Conclusion
Gonzalez's conviction and sentence is AFFIRMED.