United States v. Leonardo Hernandez Triana

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-16972

Non-Argument Calendar

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D.C. Docket No. 1:15-cr-00021-WLS-TQL-2

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LEONARDO HERNANDEZ TRIANA,

Defendant - Appellant.

________________________

Appeals from the United States District Court

for the Middle District of Georgia

________________________

(January 14, 2019)

Before WILSON, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

Leonardo Hernandez Triana appeals his conviction, after a jury trial, for

access device fraud and identity theft. He argues the district court erred when it

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denied his motion to suppress evidence recovered from a search of his vehicle,

rejected his Batson challenges to the prosecution’s decision to strike five African

American jurors, and denied his motion for a judgment of acquittal. After careful

consideration, we affirm.

I. BACKGROUND

A. FACTUAL BACKGROUND

On October 21, 2014, Georgia State Patrol Sergeant Dwayne Massey pulled

over a truck travelling northbound on I-75 in Turner County, Georgia because it

had a tinted license plate cover. A tinted cover violates Georgia law, which

requires license plates to be visible and legible. See O.C.G.A. § 40-2-41 (“No

license plate shall be covered with any material unless the material is colorless and

transparent.”).

Triana was driving the truck. Sergeant Massey asked for his license and

registration, which Triana gave. The truck was registered to Yadina Valdes Diaz,

who was sitting in the passenger seat at the time of the stop. Sergeant Massey

asked if Triana spoke English, to which he responded, “A little bit.” Sergeant

Massey then attempted to explain the problem with the license plate cover, but

Triana “didn’t really seem that he understood.” Triana was able to speak with

Sergeant Massey but did so in “broken English.” Sergeant Massey told Triana to

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get out of the truck, and they walked to the rear of the truck, where Sergeant

Massey pointed out the tinted cover.

Triana explained that the cover was legal in Florida and promised he would

fix it. When Sergeant Massey asked Triana where he was going, Triana explained

he was on his way to Bowling Green, Kentucky. Sergeant Massey next spoke with

the passenger, Diaz, who also told Sergeant Massey they were headed for

Kentucky. Diaz told Sergeant Massey she owned the truck but did not have

identification with her.

Sergeant Massey directed Triana to wait in the truck. Sergeant Massey then

returned to his patrol vehicle, where he logged Triana’s license and asked the

dispatcher to check Triana’s criminal history report. Approximately ten minutes

after initiating the stop, Sergeant Massey printed out a written warning for the

tinted license plate cover. He also radioed another officer who spoke Spanish,

asking for help to communicate with Triana. About one minute later, Sergeant

Massey printed a consent-to-search form. Meanwhile, the dispatcher confirmed

Triana had a valid driver’s license and the vehicle was registered to Diaz.

Shortly thereafter, Sergeant Massey got out of his patrol vehicle. Triana met

him at the back of the truck, where Sergeant Massey handed over a copy of the

written warning and returned Triana’s license and registration. Triana then asked

Sergeant Massey where he could find a gas station or store to get a screwdriver to

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remove the tinted license plate cover. Sergeant Massey replied that the next exit

had a few stores where Triana might stop and find a screwdriver. After answering

Triana’s question, Sergeant Massey observed that in his experience, transporting

large objects like the freezer in the back of Triana’s truck can be a sign of drug

trafficking activity. Following this observation, Sergeant Massey asked Triana if

he had any drugs or weapons in the car. Triana said he did not. Apparently

unconvinced, Sergeant Massey asked Triana if he “had any objection” to Massey

searching the truck for drugs or weapons. Triana did not understand the question

at first but then responded “No, nothing.”1 Sergeant Massey asked Triana to sign a

consent form for the search, but Triana indicated he did not understand the form.

After about a minute of discussing consent, Trooper Mejia arrived on the scene.

Trooper Mejia explained, but did not read, the consent form to Triana in Spanish.

Triana subsequently agreed the officers could search the truck and signed the form.

Sergeant Massey searched the truck with the assistance of a third officer on

the scene. He found a red duffle bag in the back seat. Inside the bag was a pair of

rolled up socks that contained twenty Walmart gift cards and two card “skimmer”

devices, which are used to read electronic financial information from cards. The

officers arrested Triana and Diaz.

1

There is some dispute about whether this answer meant Triana had no objection to the

search, or whether he was saying he had nothing illegal in the truck.

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Later analysis of the gift cards revealed they were encoded with account

numbers from financial institutions, rather than Walmart credit information. With

the account numbers encoded on the card’s magnetic strips, the cards could be

used to access bank account funds. The account numbers on the cards did not

belong to either Triana or Diaz.

B. PROCEDURAL BACKGROUND

Triana and Diaz were charged with two counts of fraud in connection with

access devices under 18 U.S.C. § 1029(a)(3)–(4), and five counts of aggravated

identity theft under 18 U.S.C. § 1028A.

Triana moved to suppress the evidence found in the truck. He argued the

officers did not have a valid reason to stop him and that they unlawfully prolonged

the traffic stop to search the truck. Triana also contended he did not voluntarily

consent to the officers’ search of the truck.

On September 17, 2015, the district court held a suppression hearing. At the

hearing, Sergeant Massey and Trooper Mejia testified about the traffic stop and

their interactions with Triana. The government also presented a video recording of

the stop from the dashcam in Sergeant Massey’s patrol vehicle.

The district court denied the motion to suppress. It found Sergeant Massey’s

actions—including the request for criminal history—did not unreasonably prolong

the traffic stop. As for the time it took for Trooper Mejia to arrive and Triana to

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consent to the search, the district court found that “the traffic stop concluded when

Massey handed Hernandez Triana the warning ticket, and everything that occurred

thereafter was part of a consensual interaction because Hernandez Triana was free

to leave.” The district court also found that, based on Triana’s age and apparent

intelligence, his oral consent to search the truck was “freely and voluntarily given.”

Triana and Diaz proceeded to trial. During jury selection, Triana objected to

five of the government’s six peremptory strikes, arguing they showed a pattern of

racial bias because each of the five jurors struck was African American. The

district court asked the government to provide race-neutral reasons for each strike,

which the government did. The court ultimately rejected Triana’s Batson

challenge, finding that the government’s responses were “more than adequate to

establish that [the strikes] were exercised appropriately and not for some

unconstitutional purposes.”

Sergeant Massey and Trooper Mejia testified during the four-day trial. The

jury also heard from investigators who explained how bank account numbers had

been encoded on the magnetic strips of the Walmart gift cards found in the truck.

Finally, five witnesses testified they had each used a credit or debit card at a Shell

gas station in Greenville, Kentucky, and that the account numbers from their cards

had been encoded on the Walmart gift cards without their knowledge.

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At the close of the government’s case in chief, and again after closing

arguments, Triana moved for a judgment of acquittal, arguing the government

failed to prove joint or exclusive possession of the gift cards and electronic

skimmers in the truck. The district court denied the motion.

The jury found Triana and Diaz guilty on all seven counts. The district court

sentenced Triana to 38-months imprisonment and Diaz to 36-months

imprisonment. This appeal followed. 2

II. ANALYSIS

Triana raises three issues in this appeal. First, he argues the district court

erred in denying his motion to suppress evidence. Next, he alleges the government

violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), by striking five

potential jurors on the basis of race. Finally, he asserts the district court abused its

discretion when it denied his motion for a judgment of acquittal. We address each

argument in turn.

A. FOURTH AMENDMENT VIOLATION

This court reviews “the district court’s findings of fact for clear error and its

application of the law to those facts de novo” when the issue presented on appeal is

whether the district court correctly denied the defendant’s motion to suppress.

2

Both Triana and Diaz appealed, but Diaz’s appeal was dismissed for want of

prosecution. We therefore consider only the issues raised in Triana’s appeal.

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United States v. Epps, 613 F.3d 1093, 1097 (11th Cir. 2010). “In reviewing the

district court’s denial of a motion to suppress, we must take the facts in the light

most favorable to the Government.” United States v. Watkins, 760 F.3d 1271,

1279 (11th Cir. 2014). “Whether a person consented to a search is, as a general

proposition, a matter of fact, and therefore is reviewed for clear error.” Id.

Triana first argues that evidence of the Walmart cards and skimmer devices

should have been suppressed because they were the result of an unlawfully

prolonged traffic stop. We disagree.

The Supreme Court has made clear that officers violate the Fourth

Amendment when they prolong a traffic stop “ ‘beyond the time reasonably

required to complete th[e] mission’ of issuing a warning ticket.” Rodriguez v.

United States, 575 U.S. __, 135 S. Ct. 1609, 1614–15 (2015) (quoting Illinois v.

Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005)). This Court, however,

has recognized two limited exceptions to this rule: first, when officers have an

“objectively reasonable and articulable suspicion that illegal activity has occurred

or is occurring”; and second, if the facts indicate that “the initial detention has

become a consensual encounter.” United States v. Ramirez, 476 F.3d 1231, 1237

(11th Cir. 2007) (quotation marks omitted).

The district court did not err when it found that the traffic stop became a

consensual encounter when Sergeant Massey provided Triana with a copy of the

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written warning and returned to Triana his license and registration. For one, the

dashcam footage reveals that after Triana received all his documents, he asked

Sergeant Massey for directions to the nearest store so he could purchase a

screwdriver to remove the tinted license plate. This strongly suggests a reasonable

person would have felt free to leave. For another, Sergeant Massey did not

immediately respond to Triana’s question with a request to search the truck.

Rather, Sergeant Massey provided Triana with directions and then asked Triana

whether he would mind if Massey asked a question. Only when Triana indicated

he did not mind did Sergeant Massey ask whether Triana had any illegal drugs or

cash in the truck, and following that, whether Triana had any objections to the

officers searching his vehicle.

As we outlined in Ramirez, there is no “bright-line litmus test for whether a

traffic stop is a seizure or is a consensual encounter.” 476 F.3d at 1240 (quotation

marks omitted). But where, as here, the record evidence indicates that the police

officers were not behaving in a coercive manner, the exchange was “cooperative in

nature,” and Triana “had everything he reasonably required to proceed on his

journey,” we conclude that a reasonable person “would have felt free to terminate

the encounter” and decline Sergeant Massey’s request to search the truck. Id. The

conversation between Triana and Sergeant Massey, as well as the questions and

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search that followed, were therefore part of an ongoing, consensual encounter and

did not prolong the original traffic stop. Id.

Neither can he prevail on his argument that his consent was invalid because

it was not “freely and voluntarily” given. As the district court observed, “the

totality of all the surrounding circumstances” weigh in favor of finding that Triana

freely consented to a search of his truck. Schneckloth v. Bustamonte, 412 U.S.

218, 226, 93 S. Ct. 2041, 2047 (1973). Trooper Mejia explained in Spanish the

contents of the consent form and made clear to Triana that the purpose of the

vehicle search would be to look for drugs, firearms, and other contraband. Triana

replied in Spanish that he was fine with the search and that the officers could “go

ahead and search,” because he didn’t have any drugs, firearms, and contraband in

the truck.

Although Trooper Mejia did not advise Triana of his right to refuse, this

failure is not sufficient in and of itself to render Triana’s verbal consent

involuntary. United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999) (“The

mere fact that Phillips did not inform Lorenzo of his right to refuse consent, given

the lack of any coercive behavior on Philips’s part, is insufficient to render

Lorenzo’s consent involuntary.”). This is particularly true when the other relevant

factors point in favor of voluntary consent, as they do here: Triana was an adult at

the time; he did not appear to lack either the education or intelligence necessary to

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understand Officer Mejia’s explanation of the form; and Officer Mejia did not

exhibit coercive behavior. See id. at 1241. In addition, Officer Mejia requested

consent in a language Triana was fluent in, thereby removing any concerns as to

whether Triana’s “limited comprehension of English prevented him from providing

voluntary [verbal] consent.” Id. at 1242.

In light of these facts, the district court did not err when it determined that

Triana freely and voluntarily gave verbal consent to the officers to search the

vehicle. The court’s decision to deny Triana’s motion to suppress was therefore

proper. See United States v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)

(explaining the district court correctly denied the defendant’s motion to suppress

where record evidence indicated he “verbally consented to the search” and the

“consent was voluntary”).

B. BATSON VIOLATION

Triana next argues the government’s decision to strike five African

American jurors deprived him of a fair and impartial jury. See Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). This argument is without merit.

Batson established that when a “defendant makes a prima facie showing” of

racially motivated preemptory strikes, “the burden shifts to the State to come

forward with a neutral explanation for challenging black jurors.” Id. at 97, 106 S.

Ct. at 1723. Once the government has articulated a race-neutral reason for the

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strike, the district court must weigh the evidence and credibility of the parties and

“determine if the defendant has established purposeful discrimination.” Id. at 98,

106 S. Ct. at 1724; see also Foster v. Chatman, 578 U.S. __, 136 S. Ct. 1737, 1747

(2016). Because the “ultimate question of discriminatory intent represents a

finding of fact,” we review a district court’s conclusion on this last Batson step for

clear error. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245, 1248

(11th Cir. 2014) (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S. Ct.

1859, 1868 (1991) (plurality opinion)).

The district court did not clearly err when it found the government’s race-

neutral reasons were “more than adequate to establish that [the peremptory strikes]

were exercised appropriately and not for some unconstitutional purpose.” The

government explained that it struck one juror because she said “she had such

strong ill feelings towards the judicial system,” and the government worried she

would have a “presumption against the government.” The government struck a

second juror because “she listed no prior jobs whatsoever for experience,” and the

government thought jurors without significant work experience would not “be the

best type of juror for this case.” The government struck a third juror because she

served on a criminal jury in federal court in a jurisdiction where the government

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lost at least one case that year. 3 A fourth juror was excluded because she indicated

on her questionnaire “everyone should get another chance like [her] uncle’s killer,”

and a fifth because the government thought she seemed “cavalier” about the

proceedings.

Triana has not presented any evidence that the government’s reasons were

pretextual or otherwise not credible. We therefore cannot say the district court

clearly erred when it determined the government did not strike these jurors on the

basis of race. 4

C. JUDGMENT OF ACQUITTAL

Last, Triana contends the district court erred when it denied his motion for a

judgment of acquittal. Triana was charged with, and convicted of, violating 18

U.S.C. §§ 1029(a)(3), 1029(a)(4), and 1028A, each of which requires proof that a

defendant have knowingly possessed the contraband at issue. Triana argues there

was insufficient evidence presented a trial to prove beyond a reasonable doubt that

he knowingly and actually or constructively possessed the Walmart gift cards and

3

This reason could be characterized as “irrational, silly, [and] superstitious.” United

States v. Hughes, 840 F.3d 1368, 1382 (11th Cir. 2016) (quotation marks omitted). By this

logic, a prosecutor can strike any juror who serves on a petit jury in any federal district court in

the United States of America where the government has lost a case. And yet, our precedent

requires that we accept this explanation. See id.

4

To the extent Triana argues these reasons were not sufficiently neutral to pass Batson’s

second step, his argument is not supported by the law. As we have said before, the government’s

stated reason “need not be a good reason”—only a non-discriminatory one. Hughes, 840 F.3d at

1382 (quotation marks omitted). Each of the five reasons proffered satisfies that minimal

requirement.

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skimming devices. As a result, he argues the district court should have granted his

motion for a judgment of acquittal on all counts. This argument elides the

evidence.

We review de novo a district court’s decision to deny a motion for a

judgment of acquittal on sufficiency of evidence grounds. United States v. Capers,

708 F.3d 1286, 1296 (11th Cir. 2013). As part of our review, we must “consider[]

the evidence in the light most favorable to the Government, and draw[] all

reasonable inferences and credibility choices in the Government’s favor.” Id. “A

jury’s verdict cannot be overturned if any reasonable construction of the evidence

would have allowed the jury to find the defendant guilty beyond a reasonable

doubt.” Id. at 1297 (quotation marks omitted).

The government demonstrated at trial that Triana and Diaz shared an address

and the vehicle was registered to Diaz at that same address. The government also

introduced testimony and evidence that officers found numerous items belonging

to Triana in the vehicle, including two money orders Triana purchased to pay for

the apartment he shared with Diaz more than a month before his arrest, a U-Haul

receipt with Triana’s name from almost three months earlier, and an envelope and

letter addressed to Triana from T-Mobile dated five months before the traffic stop.

A reasonable juror could infer from this that Triana and Diaz functionally shared

ownership of the vehicle and regularly left or stored their possessions in the car,

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including the duffle bag containing the devices and gift cards, which was found

behind Triana’s seat.

There was also evidence that Triana, who said he was unemployed, had a

significant amount of money on his person and items indicating interest in larger

purchases. A reasonable juror could infer that these were the products of card-

skimming practices related to the duffle bag’s contents, further establishing

Triana’s knowing possession of the contraband. 5 Taken together, the evidence was

sufficient to show Triana had some form of control over the contraband in

question, which qualifies as constructive possession. See United States v. Greer,

440 F.3d 1267, 1271 (11th Cir. 2006) (“Constructive possession exists when the

defendant exercises . . . control over the item.”). The district court therefore did

not err when it denied his motion for a judgment of acquittal. See id. (“The

government need not prove actual possession in order to establish knowing

possession; it need only show constructive possession through direct or

circumstantial evidence.”).

AFFIRMED.

5

To the extent Triana argues the government presented insufficient evidence that he “was

a willful participant in the crime,” this argument is similarly without merit. A reasonable juror

could infer from the same evidence that Triana intended to use the contraband to defraud others.

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