UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4033
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAUL CAVILLO-ROJAS, a/k/a Saul Rojas, a/k/a Toche,
Defendant - Appellant.
No. 10-4061
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GENARO LARA-SALGADO,
Defendant - Appellant.
No. 10-4062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADOLFO JAIMES-CRUZ,
Defendant - Appellant.
No. 10-4067
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDY JAIMES-CRUZ,
Defendant - Appellant.
No. 10-4072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LORENZO JAIMES-CRUZ,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:08-cr-00139-FL-4; 7:08-cr-00139-FL-5; 7:08-
cr-00139-FL-3; 7:08-cr-00139-FL-2; 7:08-cr-00139-FL-1)
Argued: September 21, 2012 Decided: February 15, 2013
2
Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit
Judges.
Affirmed in part, reversed in part, and remanded in part by
unpublished opinion. Judge Niemeyer wrote the opinion, in which
Chief Judge Traxler and Judge Motz joined.
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina; Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina; Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina; Slade Culli Trabucco, THE TRABUCCO
LAW FIRM, PA, Raleigh, North Carolina; Seth Allen Neyhart, STARK
LAW GROUP, PLLC, Chapel Hill, North Carolina, for Appellants.
Jennifer P. May-Parker, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas G.
Walker, United States Attorney, Kristine L. Fritz, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
3
NIEMEYER, Circuit Judge:
Saul Cavillo-Rojas, Genaro Lara-Salgado, Adolfo Jaimes-
Cruz, Fredy Jaimes-Cruz, and Lorenzo Jaimes-Cruz were convicted
of participating in a large-scale cocaine trafficking conspiracy
based in Hallsboro, North Carolina, and related offenses. On
appeal, all of the defendants, except for Lorenzo Jaimes-Cruz,
challenge the sufficiency of the evidence used to convict them.
Various defendants also assign error to the district court’s
denial of several pretrial motions, as well as three of its
evidentiary rulings, and Cavillo-Rojas challenges the
reasonableness of his sentence.
We conclude that the government failed to present evidence
sufficient for the jury to convict Lara-Salgado and accordingly
vacate his convictions on Counts One, Three, Four, Fourteen, and
Fifteen. We also conclude that Count Eleven, charging Fredy
Jaimes-Cruz with illegal entry into the United States, was
barred by the applicable statute of limitations and accordingly
vacate his conviction on that count and remand for resentencing.
We reject the remaining arguments of the defendants and affirm
their convictions. And we affirm Cavillo-Rojas’s sentence.
I
In May 2007, after officers with the Sherriff’s Office in
New Hanover County, North Carolina, searched the home of Ronald
4
Darden and recovered crack and powder cocaine, Darden agreed to
cooperate with police and participate in a controlled drug buy
from Lorenzo Jaimes-Cruz, whom he knew as “Amigo.” Darden had
started regularly buying cocaine from Lorenzo through an
intermediary about two years before and had been buying directly
from him since late 2006 or early 2007. Under their usual
arrangement, Darden would call Lorenzo every two to three weeks
to set up a purchase, and Lorenzo or another individual would
deliver the cocaine to him at a pre-arranged location picked by
Lorenzo. On March 18, 2008, under police supervision, Darden
placed this type of call to Lorenzo, who agreed to sell Darden
one kilogram of cocaine for $24,000.
Two days later, on March 20, Darden, fitted with a body
wire and under police surveillance, drove to the pre-arranged
location on a back road to consummate the transaction, where he
was met by a man later identified as Saul Cavillo-Rojas. Saul
Cavillo-Rojas handed Darden a kilogram of cocaine and took a
“dummy roll” of currency made to look like $24,000. When Darden
asked what the price would be for two kilograms of cocaine,
Cavillo-Rojas responded that he would get back to him. Shortly
after the exchange, police stopped and arrested Cavillo-Rojas,
finding the money in a hidden compartment of the truck he was
driving. As the police were interviewing Cavillo-Rojas in a
patrol car, a burgundy Dodge Durango pulled up to the scene,
5
driven by Juan Carlos Mendoza, with Lorenzo Jaimes-Cruz sitting
in the front seat and Genaro Lara-Salgado, Adolfo Jaimes-Cruz,
and Fredy Jaimes-Cruz sitting in the back seat. After Mendoza
provided police with a statement, giving them information about
the larger drug operation, the police went to secure Lorenzo’s
home, which was a trailer at 52 Charles Lane in Hallsboro, North
Carolina, as well as a nearby trailer located at 18 Roberts
Lane, while they obtained search warrants. After receiving
warrants and conducting searches, the police recovered several
firearms from Lorenzo’s home. And from 18 Roberts Lane, they
recovered 7.564 kilograms of cocaine and items used for
packaging cocaine, including a press, cutting agents, axle
grease, plastic wrap, plastic baggies, a set of digital scales,
and a razor blade. They also recovered a semi-automatic handgun
and ammunition, which had been lying on a couch; an SKS assault
rifle, which had been in an open closet with the bulk of the
cocaine; and a .357 caliber revolver and a box of ammunition,
which had been lying on a bed.
Based on this evidence, a grand jury returned a 16-count
indictment against Saul Cavillo-Rojas, Genaro Lara-Salgado,
Adolfo Jaimes-Cruz, Fredy Jaimes-Cruz, and Lorenzo Jaimes-Cruz.
The indictment charged all five defendants with: (1) conspiring
to distribute and possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C.
6
§§ 841(a)(1) & 846 (Count One); (2) possessing with intent to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 841(a)(1) (Count Three); (3) possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (Count Four); and (4) maintaining a place for
the purpose of distributing cocaine, in violation of 21 U.S.C.
§ 856(a)(1) (Count Fifteen). Each defendant was also charged
with entering the United States at a place other than as
designated by immigration officers and eluding examination and
inspection by immigration officers, in violation of 8 U.S.C. §
1325(a), and with being an illegal alien in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(5) & 924 (Counts
Five through Fourteen). Additionally, Cavillo-Rojas and Lorenzo
Jaimes-Cruz were charged in Count Two with distributing 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),
and Lorenzo Jaimes-Cruz was charged in Count Sixteen with making
a building available for storing and distributing cocaine, in
violation of 18 U.S.C. § 856(a)(2). All defendants, except for
Fredy Jaimes-Cruz, pleaded guilty to the illegal-entry offense,
as charged in Counts Five, Seven, Nine, and Thirteen.
Additionally, Cavillo-Rojas pleaded guilty to Count Two. The
defendants were jointly tried before a jury on the remaining
counts.
7
At trial, the government introduced testimony from Ronald
Darden, as well as from a number of law enforcement officers who
testified about the controlled buy in which Darden participated
and the searches of the trailers at 52 Charles Lane and 18
Roberts Lane.
The government also presented testimony from Mendoza, the
driver of the Dodge Durango, who had pleaded guilty to a drug
conspiracy charge. Mendoza testified that his sister was
married to Lorenzo and that he had come to North Carolina to
live with them in December 2007. A couple of weeks after he
arrived, he agreed, as a favor to Lorenzo, to put the trailer at
18 Roberts Lane in his name, even though Lorenzo paid for the
trailer and for the utility bills. He testified that Adolfo
Jaimes-Cruz and Saul Cavillo-Rojas lived at the trailer, but
that he, Lorenzo, and Fredy Jaimes-Cruz also spent time there.
According to Mendoza, for a two month period, ten kilograms of
cocaine were delivered to the trailer every two to three weeks,
and he, Lorenzo, and Fredy would then repackage it, about two
kilograms at a time. He described how they would use a hammer
and a knife to cut the cocaine into pieces, which they then
mixed with cutting agents, compressed, and wrapped with plastic
baggies and tape. Mendoza testified that he was the one who
usually purchased the supplies used for repackaging, although
Cavillo-Rojas once purchased tape and baggies. He said that
8
Cavillo-Rojas and Adolfo also took some of the cocaine for
personal use.
Mendoza also testified that on the day of their arrest,
March 20, 2008, he, Lorenzo, Fredy, Adolfo, and Lara-Salgado
were in the burgundy Dodge Durango on their way to eat at a
restaurant in Wilmington when Lorenzo directed Mendoza, who was
driving, to turn off their route and drive to a certain place,
saying that he wanted to see if Cavillo-Rojas was all right.
The government also called Agent Thomas Swivel of
Immigration and Customs Enforcement to testify about statements
made by Genaro Lara-Salgado during a police interview on April
30, 2008. Before Swivel testified, the district judge
instructed the jury “that any statement should not be considered
in any way whatsoever as evidence with respect to any other
defendant on trial.” Swivel then testified that Lara-Salgado
had told him that he had been living at the 18 Roberts Lane
trailer for about 15 days and that he received room and board
for taking care of roosters and chickens that were close to the
property. Swivel stated that Lara-Salgado told him that the
trailer was a stash house and that he had seen the packaging,
repackaging, and transportation of cocaine there, witnessing the
presence of at least four kilograms of cocaine, but that he had
denied any direct involvement. Swivel testified also that Lara-
Saldago told him that he was given cocaine for personal use by
9
another person who resided in the trailer, who would “pinch a
quantity off” of a kilogram of cocaine.
At the conclusion of the evidence, the jury returned guilty
verdicts on all charges. The district court sentenced Saul
Cavillo-Rojas to 248 months’ imprisonment; Genaro Lara-Salgado
to 180 months’ imprisonment; Adolfo Jaimes-Cruz to 248 months’
imprisonment; Fredy Jaimes-Cruz to 270 months’ imprisonment; and
Lorenzo Jaimes-Cruz to 425 months’ imprisonment. Each defendant
was also sentenced to a five-year term of supervised release and
ordered to pay a fine.
These appeals followed.
II
First, Saul Cavillo-Rojas, Adolfo Jaimes-Cruz, Fredy
Jaimes-Cruz, and Genaro Lara-Salgado contend that the evidence
was insufficient to convict them as to the counts charging them
with (1) conspiring to distribute and possess with intent to
distribute five kilograms or more of cocaine (Count One); (2)
possessing with intent to distribute five kilograms or more of
cocaine (Count Three); (3) possessing a firearm in furtherance
of a drug trafficking crime (Count Four); (4) being an illegal
alien in possession of a firearm (Counts Eight, Ten, Twelve, and
Fourteen); and (5) maintaining a place for the purpose of
distributing cocaine (Count Fifteen).
10
A challenge to the sufficiency of evidence must fail if
“there is substantial evidence, taking the view most favorable
to the Government, to support [the conviction].” United States
v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal
quotation marks omitted). “[S]ubstantial evidence is evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). In reviewing a sufficiency claim, we
consider “circumstantial as well as direct evidence, and allow
the government the benefit of all reasonable inferences from the
facts proven to those sought to be established.” United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
The elements of the crimes for which these four defendants
challenge their convictions are well established. First, to
prove the charged conspiracy, “the government was required to
establish beyond a reasonable doubt that: (1) an agreement to
distribute and possess cocaine with intent to distribute existed
between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily
became a part of this conspiracy.” United States v. Yearwood,
518 F.3d 220, 225-26 (4th Cir. 2008) (internal quotation marks
omitted). “The existence of a tacit or mutual understanding is
sufficient to establish a conspiratorial agreement, and the
11
proof of an agreement need not be direct -- it may be inferred
from circumstantial evidence.” United States v. Kellam, 568
F.3d 125, 139 (4th Cir. 2009) (internal quotation marks
omitted); see also United States v. Edmonds, 700 F.3d 146, 147
(4th Cir. 2012) (reissuing earlier opinion at 679 F.3d 169, 174
as to its holding that a conspiracy can be inferred from the
quantity of cocaine involved in a transaction between two
persons). Additionally, “[o]nce it has been shown that a
conspiracy exists, the evidence need only establish a slight
connection between the defendant and the conspiracy to support
conviction.” Burgos, 94 F.3d at 861 (internal quotation marks
omitted). In other words, “a defendant need not know all of his
coconspirators, comprehend the reach of the conspiracy,
participate in all the enterprises of the conspiracy, or have
joined the conspiracy from its inception.” Id.
Second, to prove the charge of possession with intent to
distribute cocaine, the government must show: (1) possession of
the cocaine; (2) knowledge of this possession; and (3) intent to
distribute the cocaine. See Burgos, 94 F.3d at 873. Possession
may be actual or constructive, and constructive possession may
be proved by showing “that the defendant exercised, or had the
power to exercise, dominion and control over the item.” Id.
(internal quotation marks omitted). Additionally, “[p]ossession
need not be exclusive, but may be shared with others.” Id.
12
(alteration in original) (internal quotation marks omitted).
“The requisite intent to distribute may be inferred if the
quantity of drugs is greater than would be used for personal
consumption.” Id. As such, “[m]ultiple persons possessing a
large quantity of drugs and working in concert sufficiently
establish constructive possession.” Burgos, 94 F.3d at 873.
Third, “[t]o establish a violation of 18 U.S.C.
§ 924(c)(1), the government must prove that the defendant used
or carried a firearm during and in relation to a drug
trafficking crime or possessed a firearm in furtherance of a
drug trafficking crime.” United States v. Stephens, 482 F.3d
669, 673 (4th Cir. 2007). We have held that the statutory term
“furtherance” in § 924(c) “should be given its plain meaning,”
and we have recognized that one of the ways a firearm might
further drug trafficking is by “provid[ing] a defense against
someone trying to steal drugs or drug profits” or by
“lessen[ing] the chance that a robbery would even be attempted.”
United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).
Fourth, to establish a § 922(g)(5)(A) violation, the
government must prove: (1) that the defendant was an alien
illegally in the United States; (2) that he knowingly possessed
a firearm; and (3) that the firearm had travelled in interstate
commerce. See United States v. Smoot, 690 F.3d 215, 218 n.2
(4th Cir. 2012).
13
Fifth and finally, to prove the offense of maintaining
premises for drug activity, the government must prove that the
defendant (1) knowingly (2) opened, leased, rented, used, or
maintained a place (3) for the purpose of manufacturing,
distributing, or using a controlled substance. 21 U.S.C.
§ 856(a)(1).
In this case, the government presented ample evidence to
support the convictions of Saul Cavillo-Rojas, Adolfo Jaimes-
Cruz, and Fredy Jaimes-Cruz on all five of these offenses.
Mendoza testified that Cavillo-Rojas and Adolfo lived at 18
Roberts Lane, a trailer that was used to repackage and store
large quantities of cocaine over a two-month period, and that
Fredy Jaimes-Cruz spent time there as well as one of three
people who actively participated in repackaging the cocaine.
From this evidence, the jury could have reasonably found that
these defendants knowingly and voluntarily participated in the
charged drug-trafficking conspiracy and that they jointly
possessed the drugs and guns found in plain view there.
Additionally, given the amount of cocaine recovered from 18
Roberts Lane, the evidence that the drugs were repackaged at the
trailer for distribution, and the proximity of the guns to the
drugs, there was substantial evidence for the jury to find that
the guns recovered from the trailer were jointly possessed by
these defendants in furtherance of a drug trafficking crime and
14
that they used and maintained the trailer for the distribution
of cocaine. Accordingly, we reject the sufficiency challenges
raised by these three defendants.
The government’s evidence against Genaro Lara-Salgado,
however, stands on different footing, and we find merit in his
challenge to the sufficiency of the evidence used to convict
him. When the defendants moved for acquittal under Federal Rule
of Criminal Procedure 29 at the close of the government’s case,
the district court reserved judgment on Lara-Salgado’s motion,
later denying it but characterizing the government’s proof as
“especially limited.” In denying the motion, the court relied
on the evidence introduced through the testimony of Agent Swivel
that Lara-Salgado had admitted to Swivel that he lived at 18
Roberts Lane for 15 days and obtained cocaine for his personal
use there. Swivel’s evidence was the only evidence in the
record tending to inculpate Lara-Salgado, albeit
circumstantially.
Lara-Salgado argues persuasively that his admission or
confession made to Swivel was not sufficiently corroborated to
support its probative value. It is well established that “a
conviction must rest upon firmer ground than the uncorroborated
admission or confession of the accused made after commission of
a crime.” United States v. Abu Ali, 528 F.3d 210, 234 (4th Cir.
2008) (internal quotation marks omitted). In Opper v. United
15
States, 348 U.S. 84, 93 (1954), the Supreme Court held that
corroborative evidence is sufficient if it “supports the
essential facts admitted sufficiently to justify a jury
inference of their truth.” See also Wong Sun v. United States,
371 U.S. 471, 489 (1963) (“[A]lthough corroboration is necessary
for all elements of the offense established by admissions alone,
extrinsic proof [i]s sufficient which merely fortifies the truth
of the confession, without independently establishing the crime
charged” (internal quotation marks omitted)). Construing Opper,
we have similarly held that “corroborating evidence need not,
itself, establish every element of the offense” but that it must
at least “tend to support the admitted fact.” Stephens, 482
F.3d at 672 (internal quotation marks omitted).
Here, other than Agent Swivel’s testimony regarding Lara-
Salgado’s statement, the government’s only evidence against
Lara-Salgado was that he was present in the burgundy Dodge
Durango, along with Mendoza, Lorenzo Jaimes-Cruz, Adolfo Jaimes-
Cruz, and Fredy Jaimes-Cruz, when that vehicle pulled up to the
area where police had arrested Cavillo-Rojas shortly after the
controlled buy. Without more, however, this evidence does not
suffice to corroborate Lara-Salgado’s admission that he had been
living at 18 Roberts Lane for approximately two weeks. The
government’s evidence against Lara-Salgado would have been
significantly stronger, if not sufficient, if the government had
16
been able to present evidence that the occupants of the Dodge
Durango had gotten into the vehicle for the purpose of checking
on Cavillo-Rojas, who had yet to return from delivering the
kilogram of cocaine involved in the controlled buy. Instead,
Mendoza, the government’s key witness, testified that the group
was in the truck to go to a restaurant in Wilmington for dinner.
While en route, he said, Lorenzo unilaterally told him to turn
off the route because he wanted to see if Cavillo-Rojas was all
right. In light of this testimony, Lara-Salgado’s presence in
the Dodge Durango’s back seat shows that he had some association
with the members of the conspiracy, but it does not support a
conclusion that his association was knowingly related to drug
trafficking, nor does it support his admission about being
present at 18 Roberts Lane and receiving cocaine there. The
only testimony in the record was that the association of the
five defendants in the truck was to go to dinner. Accordingly,
we vacate his jury convictions.
III
Various defendants also challenge the district court’s
denial of four pretrial motions: (1) the defendants’ joint
motion to bifurcate the trial; (2) Lorenzo Jaimes-Cruz’s motion
to continue the trial; (3) Lorenzo’s motion to suppress evidence
obtained during the search of his home; and (4) Fredy Jaimes-
17
Cruz’s motion to dismiss Counts Eleven and Twelve of the
indictment. We conclude that Count Eleven should have been
dismissed as barred by the applicable statute of limitations and
that the district court committed no reversible error in denying
the other motions.
A
First, Cavillo-Rojas argues directly -- and the other
defendants by adoption -- that the district court abused its
discretion when it denied their motion to bifurcate the trial in
a way that would prevent the jury from receiving evidence
regarding their status as illegal aliens when considering the
drug-related charges. Specifically, prior to trial, the
defendants requested that the district court exercise its
discretion under Federal Rule of Criminal Procedure 14(a) to
allow a bifurcated trial in which the government would not
introduce evidence concerning the defendants’ immigration status
until after the jury had first considered and rendered a verdict
on the drug-related charges. In support of their motion, the
defendants expressed concern that evidence of their immigration
status could potentially prejudice the jury against them,
denying them a fair trial on their drug-related offenses.
The district court denied the motion, noting that a
defendant seeking relief under Rule 14(a) “‘has the burden of
demonstrating a strong showing of prejudice,’” (quoting United
18
States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984)), and
concluding that “[d]efendants’ general assertion that
immigration is a ‘highly-charged and highly-emotional’ issue
does not” suffice. The court further found that conducting a
bifurcated trial would result in inefficiencies, especially
since the indictment charged crimes involving the possession of
guns in relation to both drug trafficking and their status as
illegal aliens. The court’s ruling was sound and well within
its discretion. See United States v. Lopez, 477 F.3d 1110, 1116
(9th Cir. 2007) (“No law supports Lopez’s contention that the
jury’s knowledge that he was an illegal alien created prejudice
of such magnitude that the defendant’s right to a fair trial
[was] abridged” (alteration in original) (internal quotation
marks omitted)).
B
Lorenzo Jaimes-Cruz’s contention that the district court
abused its discretion in denying his motion to continue the
trial similarly lacks merit. At the defendants’ arraignment on
June 9, 2009, the district court noted that it had set the case
for trial on August 6, 2009, and gave each defendant, through
counsel, “the chance to express any comments about that trial
date.” When specifically asked by the court whether there were
any “compelling issues as to why this case shouldn’t go forward
19
against Lorenzo Jaimes-Cruz beginning on August 6th,” Lorenzo’s
lawyer at the time, Ms. Darrow, answered, “No, your Honor.”
One week later, on June 16, 2009, Lorenzo’s newly retained
counsel, Ms. Nardine Guirguis, filed a notice of appearance.
Over a month later, on July 28, 2009, Ms. Guirguis moved for a
continuance on the ground that she “need[ed] additional time to
further review the evidence with the defendant in order to best
advise and consult with him, and to properly defend his case.”
The government did not object. The next day, the court denied
the motion on the ground that it did “not find good cause exists
to further continue this matter.”
The district court acted well within its discretion in this
ruling. In Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (internal
quotation marks omitted), the Supreme Court noted that “only an
unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay violates the right to
the assistance of counsel.” The Court further explained that
trial courts must be granted broad discretion on matters of
continuances due to the challenge of “assembling the witnesses,
lawyers, and jurors at the same place at the same time.” Id.
This burden, the Court stated, “counsels against continuances
except for compelling reasons.” Id.
Here, given that Lorenzo’s counsel filed her notice of
appearance at least six weeks before the trial commenced, her
20
motion for a continuance on the ground that she simply needed
more time to prepare did not present a compelling reason that
required the court to find a new block of time at which the
witnesses and lawyers for this five-defendant case could appear.
C
Next, Lorenzo appeals the district court’s denial of his
motion to suppress evidence recovered during a search of his
home at 52 Charles Avenue, contending that his Fourth Amendment
rights were violated because the police entered his home before
obtaining a warrant and also because the warrant they eventually
obtained was not supported by probable cause.
At a suppression hearing, Lieutenant Detective Steven
Worthington, of the Columbus County Sheriff’s Office, testified
that during the arrests that followed the controlled buy, he
learned of Mendoza’s statement made to a Spanish-speaking police
officer that Lorenzo Jaimes-Cruz owned both vehicles at the
scene; that Lorenzo was the leader of a drug-distribution
organization; and that Lorenzo lived at 52 Charles Avenue.
Mendoza also stated that there were two firearms inside the
residence and that a woman and two small children lived there
and were possibly home at the time. At that point, Detective
Worthington and a colleague directed an officer who was
conducting surveillance of the trailer park to proceed with a
SWAT team to secure 52 Charles Avenue while a search warrant was
21
being obtained. Worthington testified that he was concerned
that the occupants of the Dodge Durango might have taken the
opportunity to make a phone call to alert someone at the mobile
home park after they saw that Cavillo-Rojas had been arrested
but before they themselves were stopped. Worthington further
testified, “Knowing that there was firearms possibly present
there, I felt that it was an officer safety issue as much as an
issue of destruction of the property that could have been
inside.” He explained:
The officers would have been on the outside of the
residence conducting . . . perimeter security, without
making entry into the residence to secure any other
unknown individuals that could have been there. Based
on what Mr. Mendoza had told at the traffic stop, he
thought there was two small children and a female
there. But he had a period of time where he didn’t
know who else may have been in the residence or any
additional property that could have been in the
residence, like more firearms.
When the SWAT team entered the residence, they indeed found
a woman and two small children present, as well as a long gun
and a handgun in plain view. But they did not search the home
until they had received the search warrant.
As to the search warrant, the affidavit attached to the
application for the warrant showed that the Superior Court
judge, who authorized the warrant, had reliable evidence before
him that Lorenzo was the leader of a drug-trafficking
22
organization and that his residence contained at least two
firearms.
After hearing arguments, the district court denied
Lorenzo’s motion to suppress, finding “that the agents were well
within the exigent circumstances exception to the Fourth
Amendment when they entered the defendant’s home.” The court
also found that there was sufficient probable cause to justify
the search warrant for 52 Charles Avenue.
We agree. In the circumstances testified to by
Worthington, exigent circumstances justified the officers’ entry
into 52 Charles Avenue to secure the home while they were
obtaining a search warrant. See United States v. Cephas, 254
F.3d 488, 495 (4th Cir. 2001) (noting that the factors
justifying a warrantless entry based on exigent circumstances
include “information indicating the possessors of the contraband
are aware that the police are on their trail,” “the ready
destructibility of the contraband,” and “the possibility of
danger to police guarding the site” (internal quotation marks
omitted)). And the evidence before the Superior Court judge was
sufficient to justify his conclusion that probable cause for the
warrant existed. He had evidence that Lorenzo was the head of a
drug-trafficking operation and that his house contained guns,
which were contraband. Accordingly, we conclude that the
district court properly denied Lorenzo’s motion to suppress.
23
D
Fredy Jaimes-Cruz challenges the district court’s denial of
his motion to dismiss Count Eleven, which charged him with
illegally entering the United States, in violation of 8 U.S.C. §
1325(a), and Count Twelve, which charged him with being an
illegal alien in possession of a firearm, in violation of 18
U.S.C. § 922(g)(5). We sustain his challenge and reverse his
conviction on Count Eleven; we affirm his conviction on Count
Twelve.
In his motion to dismiss Count Eleven, Fredy argued that
the § 1325(a) charge, first filed in December 2008, was barred
by the five-year statute of limitations set forth in 18 U.S.C. §
3282(a). 1 As relevant here, § 1325(a) makes it a crime to “(1)
enter[] or attempt[] to enter the United States at any time or
place other than as designated by immigration officers, or (2)
elude[] examination or inspection by immigration officers.” 8
U.S.C. § 1325(a) (emphasis added). While Fredy concedes that he
entered the United States without inspection, he contends that
he did so more than five years before he was charged with
illegal entry. The record evidence supports his claim. Exhibit
1
Section 3282(a) provides that “[e]xcept as otherwise
expressly provided by law, no person shall be prosecuted, tried,
or punished for any offense, not capital, unless the indictment
is found or the information is instituted within five years next
after such offense shall have been committed.”
24
FJC-2, admitted into evidence, was an I-797 form (“Notice of
Action”), dated June 21, 2006, which reported the approval by
the U.S. Citizenship and Immigration Service of an I-130
“Immigrant Petition for Relative” that had been filed on April
23, 2001, by Fredy’s father on behalf of Fredy, who was then
under 21. The I-797 notice states that the I-130 “petition
indicates that the person for whom you are petitioning [i.e.,
Fredy] is in the United States and will apply for adjustment of
status” by filing a form I-485 (“Application for Permanent
Residence”). Because this evidence demonstrates that Fredy was
in the United States more than five years before he was charged
with illegal entry, the illegal-entry charge was barred by the
applicable statute of limitations. 2
The government argues that the evidence failed to show that
federal immigration officials “found” Fredy in the United States
prior to the five-year period before his indictment, suggesting
that the government must have learned of his presence in the
2
The fact that Fredy’s illegal entry occurred more than
five years before the indictment’s return was also indicated
subsequently by the pre-sentence investigation report. While
the report was not before the district court when it ruled on
Fredy’s motions, the report nonetheless states that Fredy told
the Probation Officer that he first illegally entered the United
States in 1996; that he returned to Mexico for three months in
1999; and that he had lived in North Carolina since returning to
the United States in 2000. Additionally, the report shows that
Fredy was arrested in North Carolina for a traffic offense on
March 15, 2002, a date more than five years before the
indictment.
25
United States before the limitations period could begin to run.
While the timing of when a defendant is “found” in the United
States by federal immigration authorities is material for
calculating the limitations period for a violation of 8 U.S.C.
§ 1326 (making it a crime for an alien who has previously been
denied admission or removed to subsequently enter, attempt to
enter, or “at any time [be] found in[] the United States”),
§ 1325(a) contains no similar “found in” element. Instead, a
§ 1325(a) offense is completed at the time of the defendant’s
illegal entry, and the statute of limitations begins running at
that point. See United States v. Rincon-Jimenez, 595 F.2d 1192,
1194 (9th Cir. 1979).
Because Fredy illegally entered the United States more than
five years before he was charged with doing so, we conclude that
Count Eleven was barred by the statute of limitations.
Accordingly, we vacate his conviction on that charge and remand
for resentencing.
As to the district court’s failure to dismiss Count Twelve,
charging Fredy with being an illegal alien who possessed a
firearm, in violation of 18 U.S.C. § 922(g)(5), Fredy raises
three challenges. First, he contends that he was not in the
United States illegally at the time of his arrest because he had
applied to adjust his status from “unlawful” to “lawful” by
filing form I-485 and Supplement A in 2007 and had obtained an
26
employment authorization card based on that application. But it
is clear, as a number of other circuits have found, that the
mere filing of an application for adjustment of status and
receipt of an employment authorization card does not legalize
the alien’s presence in the United States, and it is still a
crime, under § 922(g)(5), for that individual to possess a
firearm. See United States v. Ochoa-Colchado, 521 F.3d 1292,
1298 (10th Cir. 2008) (“We conclude that Defendant, despite his
filing of an application for adjustment of status and receipt of
an [employment authorization document], was still ‘illegally or
unlawfully in the United States’ for purposes of
§ 922(g)(5)(A)”); United States v. Latu, 479 F.3d 1153, 1159
(9th Cir. 2007); United States v. Elrawy, 448 F.3d 309, 314 (5th
Cir. 2006) (“[A]n alien who has acquired unlawful or illegal
status . . . cannot relinquish that illegal status until his
application for adjustment of status is approved”); United
States v. Bazargan, 992 F.2d 844 (8th Cir. 1993).
Second, Fredy argues that even if he was not lawfully
present by virtue of having filed an application to adjust his
status, his legal status was sufficiently unclear as to make
§ 922(g)(5) unconstitutionally vague as applied to him. This
contention also fails. “Due process requires that a criminal
statute provide adequate notice to a person of ordinary
intelligence that his contemplated conduct is illegal, for no
27
man shall be held criminally responsible for conduct which he
could not reasonably understand to be proscribed.” Buckley v.
Valeo, 424 U.S. 1, 77 (1976) (per curiam) (internal quotation
marks omitted). Thus, “the void-for-vagueness doctrine requires
that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,
357 (1983). “[V]agueness challenges to statutes which do not
involve First Amendment freedoms must be examined in the light
of the facts of the case at hand.” United States v. Mazurie,
419 U.S. 544, 550 (1975).
We conclude Fredy had constitutionally adequate notice.
His very act of applying for an adjustment of status
demonstrates that he had notice of his unlawful status. And a
reasonable person of ordinary intelligence would understand that
his status had not, in fact, been adjusted until the United
States granted his application. We therefore find no merit to
Fredy’s void-for-vagueness challenge to his § 922(g)(5)
conviction.
Finally, Fredy challenges his § 922(g)(5) conviction as
violating his Second Amendment rights. Recently, however, we
rejected this very argument. See United States v. Carpio-Leon,
701 F.3d 974 (4th Cir. 2012).
28
We conclude that the district court properly denied Fredy
Jaimes-Cruz’s motion to dismiss Count Twelve.
IV
The defendants also challenge three evidentiary rulings,
contending (1) that the admission of Agent Swivel’s testimony
regarding Lara-Salgado’s statements violated the other
defendants’ rights under the Confrontation Clause; (2) that the
district court abused its discretion in its rulings regarding
Darden’s testimony; and (3) that the district court abused its
discretion when it allowed the government to refresh Mendoza’s
recollection with an earlier statement he had given. We address
these in order.
A
All of the defendants, except for Lara-Salgado, raise a
Confrontation Clause challenge to the admission of Agent
Swivel’s testimony regarding the out-of-court statements that
Lara-Salgado had made to Swivel. As we have already noted in
some detail, Agent Swivel testified at trial that Lara-Salgado
stated during an interview that he had been living at the 18
Roberts Lane trailer for about 15 days; that he had seen the
packaging, repackaging, and transportation of at least four
kilograms of cocaine there; and that he was given cocaine for
personal use by another person who resided in the trailer who
29
would pinch a quantity off of a kilogram of cocaine. The
defendants argue that because Lara-Salgado did not testify,
their rights under the Confrontation Clause were violated by the
admission of this testimony, even though the district court
instructed the jury that this evidence “should not be considered
in any way whatsoever as evidence with respect to any other
defendant.”
In Bruton v. United States, 391 U.S. 123 (1968), the
Supreme Court “held that a defendant is deprived of his Sixth
Amendment right of confrontation when the facially incriminating
confession of a nontestifying codefendant is introduced at their
joint trial, even if the jury is instructed to consider the
confession only against the codefendant.” Richardson v. Marsh,
481 U.S. 200, 207 (1987). In Richardson, however, the Court
made clear that Bruton’s rule was a narrow one, explaining that
“the Confrontation Clause is not violated by the admission of a
nontestifying codefendant’s confession with a proper limiting
instruction when, as here, the confession is redacted to
eliminate not only the defendant’s name, but any reference to
his or her existence.” Id. at 211. The fact that the defendant
“is nonetheless linked to the confession by evidence properly
admitted against him at trial,” the Court found, did not result
in a Confrontation Clause violation. Id. at 202. The Court
again considered the application of the Confrontation Clause to
30
a nontestifying codefendant’s confession in Gray v. Maryland,
523 U.S. 185, 188 (1998), holding that the prosecution could not
redact the codefendant’s confession by substituting for the
defendant’s name a blank space or the word “deleted” because
such redactions would make it obvious to the jury that the
defendant’s name had been deleted.
From this line of cases, we have concluded that statements
that “obviously identify the defendant, even without naming him,
effect a constitutional violation that cannot be cured by a jury
instruction.” United States v. Lighty, 616 F.3d 321, 376 (4th
Cir. 2010). By contrast, “statements that incriminate by
inference or only when linked with later evidence” do not
violate the Sixth Amendment if accompanied by a proper limiting
jury instruction. Id. at 376-77.
Agent Swivel’s testimony regarding Lara-Salgado’s statement
does not obviously identify any other defendant, and it became
incriminating as to other defendants only when linked with other
evidence -- namely, evidence that established the other
defendants’ connection to 18 Roberts Lane. Because the jury was
properly instructed that it could not use Lara-Salgado’s
statement against the other defendants, we conclude that the
defendants’ rights under the Confrontation Clause were not
violated.
31
B
Lorenzo Jaimes-Cruz also contends that the district court
abused its discretion in denying a motion to strike Darden’s
testimony or, in the alternative, in refusing to allow testimony
of Darden’s misidentification or to sever the trial. This
challenge arises from a development that occurred on the second
day of trial.
Specifically, when Ronald Darden was interviewed by police
after the March 20, 2008 controlled buy, he indicated that he
had never before seen the person who had delivered the cocaine
to him, and he repeated this statement during a subsequent
interview. During a later interview, however, he was shown a
photograph of Adolfo Jaimes-Cruz, and a note was written on the
margin that Darden “thought it might be the guy who brought the
cocaine.”
Prior to trial, Adolfo moved to suppress any identification
of him by Darden. When the government represented that it did
not intend to offer the identification at issue, the court
denied Adolfo’s motion as moot.
On the morning of the second day of trial, however,
government counsel told defendants’ counsel that during trial
preparation the previous evening, Darden stated (1) that he
regularly did drug deals with “Amigo” during the period between
when he agreed to become a confidential informant (May 2007) and
32
March 20, 2008, when the controlled buy took place; and (2) that
the person who delivered cocaine to him on March 20, 2008, had
also delivered cocaine to him a month earlier. Lorenzo’s
counsel moved to strike Darden as a witness entirely on the
ground that it would have changed her trial preparation had she
known that Darden had continued to deal drugs after he agreed to
become a confidential informant. The court denied that motion.
Additionally, Cavillo-Rojas’s counsel indicated that if
Darden was going to testify that the person who delivered
cocaine to him on March 20, 2008, had previously delivered
cocaine to him, then he would want to raise the issue of
Darden’s earlier identification of Adolfo as the person who
brought the cocaine. Counsel for Cavillo-Rojas and Adolfo
therefore indicated that a conflict had arisen between their
clients. But instead of moving to sever their cases, they
indicated that they would be satisfied as long as Darden did not
testify that the person who delivered drugs to him on March 20,
2008, had previously done so, and the government agreed not to
elicit that testimony.
Lorenzo’s counsel then indicated that she wanted to elicit
the fact that Darden was engaged in drug transactions while he
was an informant but that she wanted to exclude any statement
that those drug transactions had been with “Amigo.” The
government objected to this proposal. Lorenzo’s counsel also
33
indicated that she wanted to cross-examine Darden about his
“misidentification.” She stated that it was her intent “to ask
him whether or not he’s aware that he misidentified an
individual throughout this investigation.” The government
indicated that it would object to such a question on the basis
that Darden’s statement regarding Adolfo’s picture was not a
misidentification.
The court agreed that a note written in the margin of
Adolfo’s photograph indicating that Darden “thought it might be
the guy who brought the cocaine” did not constitute a
misidentification and that Lorenzo’s counsel could not use it
for purposes of impeaching Darden. The court later indicated,
however, that Lorenzo’s counsel could cross-examine Darden
generally about identifications. The court further ruled that
if the government wanted to present Darden as a witness, the
government had to present him as having breached the
confidential source agreement by continuing to engage in the
purchase of narcotics. The court also ruled that no one could
elicit “who he bought drugs from or any of the specifics of how
the drugs he may have bought were delivered to him or who may
have delivered them.”
On appeal, Lorenzo now argues that the district court
abused its discretion “by denying the motion to sever and
forbidding defense counsel to elicit on cross examination the
34
fact that Mr. Darden had identified Adolfo as the person who had
previously brought him drugs.” We do not agree.
First, there was no motion to sever -- counsel for Adolfo
and Cavillo-Rojas indicated that they might move to sever but
eventually agreed that a severance was not necessary because of
the government’s agreement not to use Darden’s new information.
Moreover, it is a stretch for Lorenzo to claim that he was
denied an opportunity to cross-examine Darden meaningfully when
the supposed misidentification was Darden’s own statement, when
shown a picture of Adolfo, that he “thought it might be the guy
who brought the cocaine.” Having been presented with a Gordian
knot, the district court worked with counsel to resolve it
fairly to all concerned. In fact, it ruled mostly in the
defendants’ favor, requiring the government to disclose that
Darden breached his confidential source agreement but precluding
the government from showing that he did so by buying more
cocaine from Lorenzo. In short, we conclude that Lorenzo has
failed to show that the district court abused its discretion in
its rulings regarding Darden’s testimony.
C
The defendants also contend that the district court abused
its discretion by allowing the government to orchestrate a
change in Mendoza’s testimony by purporting to refresh his
recollection. They point out that Mendoza first testified that
35
he did not know how the cocaine got into the 18 Roberts Lane
trailer and that he did nothing with the drugs. At that point,
government counsel started to take steps to confront Mendoza
with a prior inconsistent statement and, during a sidebar
conference, indicated that she would “probably ask the Court to
allow me to treat him as a hostile witness, and proceed that
way.” Government counsel then showed Mendoza his prior
statement, which he eventually identified as his own. The court
then took a 15-minute recess.
After the break, government counsel continued the
examination without referencing the statement. Mendoza then
described how he was arrested and interviewed by the police. He
eventually testified that Lorenzo put the drugs in the house,
and defense counsel did not object that that question had been
asked and answered. He also testified that he, Fredy, and
Lorenzo repackaged the cocaine, although he stated that he could
not remember how it was done. When he indicated that he was
unable to remember other details, government counsel returned to
asking him about his previous statement. Mendoza testified that
he had made the statement, signed it, and that when he signed he
was agreeing to what was in the statement. He also acknowledged
that on the date that he signed the statement, the events were
fresh in his memory; that he was currently having problems
remembering; and that seeing the statement would refresh his
36
recollection. Although the court had just given the jury a
limiting instruction regarding the use of a prior inconsistent
statement to impeach a witness’s credibility, government counsel
indicated that she was “backing up and changing horses in
midstream, so to speak” and instead was asking permission to use
Mendoza’s statement to refresh his recollection. After Mendoza
reviewed the statement, it was taken from him, and he again
testified that Lorenzo put the cocaine in the trailer and to
further details regarding the repackaging operation. He also
testified that he had seen Lorenzo accept a payment for drugs.
The defendants’ primary challenge regarding Mendoza’s
testimony appears to be that the government gave him a copy of
his statement and that, when questioning resumed after a 15-
minute recess, he materially altered his testimony by stating
that Lorenzo put the drugs in the trailer. Defendants argue
that only later did the prosecution lay the necessary foundation
for using the document to refresh Mendoza’s recollection. Thus,
defendants contend, “the government was allowed to use testimony
that was not actually refreshed recollection, but rather a
parrot of the content of an unsworn document.”
We are not persuaded that defendants’ complaint is any more
than one about the inconsistencies of a reluctant witness.
Although Mendoza changed his testimony regarding whether he knew
how the drugs got in the trailer, the change does not appear to
37
be a result of the government having shown him the statement for
identification purposes. To be sure, the district court allowed
the government some latitude in repeating certain questions, but
we refuse to conclude that this constituted an abuse of
discretion.
V
Finally, Cavillo-Rojas argues that his sentence of 248
months’ imprisonment is both procedurally and substantively
unreasonable. First, he claims that the district court
committed a significant procedural error when calculating his
Guidelines range by relying on an out-of-court statement by
Mendoza when determining the drug quantity that should be
attributed to him. He argues that “[p]roperly limiting the
drug quantity calculation to the scope of Cavillo-Rojas’s
‘jointly undertaken criminal activity,’ he was at most
responsible for the cocaine he delivered, plus the drugs found
on the day of his arrest.” He asserts that Mendoza’s trial
testimony was erratic and inconsistent and that the district
court therefore erred by relying on a hearsay statement from
this unreliable witness.
Yet, as the government correctly notes, a defendant
involved in a drug conspiracy is responsible for his own acts,
as well as for “all reasonably foreseeable acts . . . of others
in furtherance of the jointly undertaken criminal activity.”
38
U.S.S.G. § 1B1.3(a)(1)(B). Additionally, a sentencing court is
not constrained by the rules of evidence and may consider any
relevant information, provided it has “sufficient indicia of
reliability to support its probable accuracy.” U.S.S.G.
§ 6A1.3(a). Under these principles, Cavillo-Rojas has not shown
that the district court erred by accepting Mendoza’s out-of-
court statement and attributing more drugs to Cavillo-Rojas than
the ones recovered by the police on March 20, 2008.
Cavillo-Rojas also contends that his 248-month sentence is
substantively unreasonable in light of the totality of the
circumstances. Yet, the district court sentenced Cavillo-Rojas
to the low end of the applicable Guidelines’ range, and Cavillo-
Rojas has failed to rebut the presumption of reasonableness
applicable to a within-Guidelines sentence. See Abu Ali, 528
F.3d at 261. Accordingly, we affirm his sentence.
VI
For the reasons given, we conclude that the government
failed to present sufficient evidence to convict Lara-Salgado
and accordingly vacate his convictions on Counts One, Three,
Four, Fourteen, and Fifteen. We conclude that Count Eleven,
charging Fredy Jaimes-Cruz with illegal entry into the United
States, was barred by the statute of limitations and accordingly
vacate his conviction on Count Eleven and remand for
39
resentencing. As to the remaining counts, we affirm the
convictions, and we affirm Cavillo-Rojas’s sentence.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED IN PART
40