Appeal from the United States District Court for the District of Nebraska.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: January 13, 2012
Before BYE, SMITH, and COLLOTON, Circuit Judges.
A jury convicted Larry Vega of possession with intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1). The district court*fn1 denied Vega's motion for judgment of acquittal or, in the alternative, new trial, and entered judgment against Vega, sentencing him to 80 months' imprisonment. On appeal, Vega argues that the district court erroneously (1) denied Vega's motion to suppress evidence obtained from a search of his residence and statements made at the time of his arrest; (2) permitted evidence of acquitted conduct at his retrial; (3) denied his motion for judgment of acquittal or, in the alternative, new trial; (4) applied the obstruction-of-justice enhancement under U.S.S.G. § 3C1.1; and (5) denied Vega acceptance of responsibility under U.S.S.G. § 3E1.1. We affirm.
Larry Vega was charged with conspiracy to distribute and possess with intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), and 846 ("Count 1"); distribution of less than five grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1) ("Count 2"); possession with intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1) ("Count 4")*fn2 ; and possession of a firearm while being an unlawful user of and addicted to a controlled substance, in violation of 18 U.S.C. § 922(g)(3) ("Count 5"). Vega pleaded not guilty to all counts of the indictment.
Vega moved to suppress evidence found after execution of a search warrant on his residence, as well as statements that he made at the time of his arrest. Vega argued that the affidavit for the search warrant did not establish probable cause and that his statements were involuntary because the police officers did not read him his Miranda rights and threatened to have his children taken away. At the suppression hearing, the magistrate judge admitted into evidence the affidavit and application for issuance of a search warrant and the search warrant for Vega's residence. Omaha Police Officer Robert Branch, Jr. testified that after execution of the search warrant, he entered the residence and interviewed Vega to determine the owner of the narcotics and gun discovered during the search. According to Officer Branch, he advised Vega of his Miranda rights by "read[ing] them from a laminated card that [Officer Branch] carri[ed] on [him]." Vega replied that he understood his rights and agreed to make a statement. But "Vega was not cooperating and basically did not provide any additional information." Thereafter, Omaha Police Officer Mark Noonan confronted Vega with methamphetamine and a gun found in Vega's garage. Officer Noonan testified that Vega "said the drugs and handguns were not his; however, he was going to take responsibility for them." Both Officers Branch and Noonan denied making any threats to Vega during questioning.
Vega, on the other hand, testified that Officer Branch never read him his Miranda rights. Vega explained that the reason that he told Officer Noonan that he would "take responsibility" for the methamphetamine and gun was because the officers threatened to have his children taken away and to charge his girlfriend with a crime.
The magistrate judge recommended that the district court deny Vega's motion to suppress. The magistrate judge found Officers "Branch and Noonan to be credible" and found "Vega to be less than credible" and "his comments self-serving." Ultimately, the magistrate judge found that Vega's statements were admissible because Officer Branch read Vega his Miranda rights prior to the custodial interrogation and "Officer Noonan correctly relied upon the previous Mirandizing of Vega by Branch." (Emphasis added.) The magistrate judge determined that the officers never threatened Vega and "that he freely, voluntarily, knowingly, intelligently waived his rights and chose to g[i]ve a statement."
After finding Officers Branch and Noonan credible, the magistrate judge concluded that the search warrant for Vega's residence "was based upon probable cause" because the affidavit provided that Dan Horvath, Vega's co-defendant, told the cooperating witness that "he had to go get the methamphetamine," left the residence, walked across the street to Vega's residence, and returned to the cooperating witness a few moments later with a small ziplock bag containing methamphetamine.
Alternatively, the magistrate judge found that even if probable cause did not exist within the four corners of the warrant, "the officers in this case made a good-faith reliance upon the issuing warrant by the magistrate."
The district court adopted the magistrate judge's report and recommendation and denied Vega's motion to suppress.
Thereafter, the grand jury returned a superseding indictment, which additionally charged Vega with using a firearm in furtherance of the crime set forth in Count 4, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count 6").
Vega proceeded to trial on the five counts against him. The jury found Vega not guilty on Counts 1, 2, and 6, and the district court declared a mistrial as to Counts 4 and 5.
Prior to his second trial on Counts 4 and 5, Vega moved for an order in limine to prevent the government from introducing evidence of the acquitted conduct. Vega asserted that if the district court permitted such evidence, then the court should also permit him "to present evidence of the prior acquittals for the conduct." The district court denied the motion.
During Vega's second trial, the following facts were established. In January 2010, a cooperating witness contacted Officer Branch and informed him that the cooperating witness "could make a controlled buy from an individual that he knew as Dan." The cooperating witness identified 1311 Kavan Street, Omaha, Nebraska, as "Dan's" residence. Officers verified that the occupant of the residence was Daniel Horvath and conducted a records search to determine if Horvath had a criminal history or police contacts.
On January 12, 2010, Officer Branch had the cooperating witness make a controlled buy from Horvath at his residence. The cooperating witness contacted Horvath and requested $300 worth of methamphetamine. Horvath then called Vega and asked if he had 3.5 grams--an "eight-ball"--of methamphetamine. This amount of methamphetamine was sufficient to cover the amount that the cooperating witness requested. Vega confirmed to Horvath that he had the requested amount of methamphetamine.
Law enforcement provided the cooperating witness "with $300 of Omaha Police Department buy fund money and instructed [him] to attempt to purchase an eight-ball, 3.5 grams, of methamphetamine." Officers monitored the cooperating witness's actions "[v]ia the electronic monitoring device that he [was] equipped with," which "record[ed] audio [and] video."
Prior to the cooperating witness's arrival at 1311 Kavan Street, Officer Jeff Hunter of the Omaha Police Department went to the area in an unmarked vehicle to establish surveillance. He parked in front of 4022 South 13th Street, Omaha, Nebraska, where he was also able to observe 1311 Kavan Street.
The cooperating witness entered the residence located at 1311 Kavan Street and remained inside the residence for approximately "five to ten minutes." "Horvath explained to [the cooperating witness] that he'd be right back," although Horvath "didn't indicate where he was going." Officer Hunter "observed [Horvath] walk directly across the street to 4022 South 13th Street where he was observed to meet with a Hispanic male in the driveway of the residence." The "Hispanic male" that Horvath met with was Vega. Officer Hunter observed Horvath and Vega have "[a] brief conversation in the driveway that lasted just a few seconds." Then, Horvath and Vega "proceeded into 4022 South 13th Street."According to Horvath, once inside Vega's residence, Horvath gave Vega "the $300 that [Horvath had] received from the informant," and Vega gave Horvath "$300 worth of meth[amphetamine]" in "[a] little zip-lock baggie" that had "the ace of spades on it." "A few moments later," Officer Hunter observed Horvath exit Vega's residence and return to Horvath's residence.
After returning to his home, Horvath confirmed on his own scale that the quantity of the methamphetamine was 3.5 grams. He then removed 0.5 grams from the allotment for his personal use. After receiving the methamphetamine, the cooperating witness returned to the officers with approximately 3 grams of methamphetamine in "a transparent clear small zip-lock bag" that had "an ace of spades design"on it. Officer Branch conducted a field test on the methamphetamine. To confirm the field test, the methamphetamine was sent to the Eastern Nebraska Forensic laboratory for analysis. The parties stipulated to the test results, which showed that the substance tested as 2.7 grams of methamphetamine, with a purity level of approximately 80 percent.
"Within 72 hours of that date, a search warrant was drafted for the residence of 1311 Kavan Street and 4022 South 13th Street." Law enforcement "suspected that both residences were involved in the distribution of methamphetamine working hand in hand together." Then, on January 22, 2010, law enforcement executed dual search warrants on Horvath's residence at 1311 Kavan Street and Vega's residence at 4022 South 13th Street.
Upon entering Horvath's residence, Officer Branch located Horvath, placed him under arrest, and advised him of his Miranda rights, which Horvath waived. After a search of the residence yielded "three firearms, [a] digital scale, [a] methamphetamine pipe, [a] marijuana pipe, marijuana, [and] a small amount of United States currency," Officer Branch confronted Horvath "with these evidentiary items." Horvath told Officer Branch that "he was a user of methamphetamine" who "had received methamphetamine from Larry, the individual across the street, in small quantities like [$]20 and $30 worth[,] which is basically .2, .3 grams of methamphetamine." When Officer Branch told Horvath that the "cooperating witness had purchased a larger amount of methamphetamine from him than just .2 or .3 grams," Horvath "denied any knowledge of that."
Officer Branch proceeded to Vega's residence at 4022 South 13th Street. The search of Vega's residence resulted in the discovery of "[a] drug scale, . . . small zip- lock bags with the ace of spades designs, [a] marijuana pipe, marijuana, approximately nine grams of methamphetamine[,] and a .22-caliber handgun." Officer Branch "also found [a cellular] phone on the person of Larry Vega." Officer Branch discovered "Daniel Horvath's phone number in Mr. Vega's phone." Officers had discovered the methamphetamine and firearm in a detached garage on the premises. Officer Branch conducted a field test on the methamphetamine and subsequently had it sent to the Eastern Nebraska Forensic Laboratory, where it was determined that the drug had a lab weight of 8.6 grams and was 80 percent pure methamphetamine.
Officer Branch "escorted [Vega] to [the] northwest bedroom, advised him who [Officer Branch] was, explained to [Vega] that he was being investigated for a narcotics investigation, explained to him that a quantity of methamphetamine had been located in the residence along with a firearm[,] and . . . advised him of his Miranda rights." (Emphasis added.) Officer Branch testified that Vega expressly waived his Miranda rights and never requested an attorney. According to Officer Branch, Vega initially denied knowledge of the methamphetamine and firearm and involvement in the distribution of methamphetamine. Officer Branch ended the interview.
Thereafter, Officer Noonan interviewed Vega "[t]o determine who had the keys to the lock on the garage." Vega acknowledged that he had keys and access to the garage. According to Officer Branch, when Officer Noonan was questioning Vega, Vega also "stated that he'd . . . take responsibility for the methamphetamine and the . . . gun; however, [they] w[ere] not his." Officer Noonan testified that no threats were made to ...