“Here, the indicted ‘specified unlawful activity’ was ‘the distribution of a controlled substance.’”
How later courts described this case
- “Here, the indicted ‘specified unlawful activity’ was ‘the distribution of a controlled substance.’”
Written by the judges who cited it.
The opinion
Case: 22-40570 Document: 144-1 Page: 1 Date Filed: 04/23/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-40570 FILED
____________ April 23, 2024
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Maria E. Garcia,
Defendant—Appellant,
consolidated with
_____________
No. 23-40145
_____________
United States of America,
Plaintiff—Appellee,
versus
Liang Guo Yu,
Defendant—Appellant.
Case: 22-40570 Document: 144-1 Page: 2 Date Filed: 04/23/2024
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 7:18-CR-960-27,
7:18-CR-960-23
______________________________
Before Richman, Chief Judge, and Oldham and Ramirez, Circuit
Judges.
Irma Carrillo Ramirez, Circuit Judge:
Defendants-appellants Maria E. Garcia and Liang Guo Yu appeal their
convictions for money-laundering. Both contend that the evidence was
insufficient to prove beyond a reasonable doubt that they committed the
offenses with which they were charged. Garcia also asserts that the district
court erred in assessing an enhancement at sentencing, and Yu maintains that
the district court abused its discretion in denying his motions for a new trial
and to suppress. We AFFIRM.
I
These consolidated appeals arise out of the Drug Enforcement
Agency’s (DEA’s) investigation of the Villalobos drug trafficking
organization (DTO) in Houston, Texas. The primary targets were the heads
of the DTO, brothers Juan and Santiago Villalobos. The DTO moved
hundreds of kilograms of cocaine and had yearly profits in the millions. As
relevant here, the investigation led to the seizure of large sums of cash during
two searches: one involving Yu, and one involving Garcia.
A
In 2016, DEA agents began surveilling Tomas Villarreal, the head of
one of the DTO’s money cells. Villarreal led agents to a potential stash house
located on O’Mally street in Houston. While conducting surveillance of the
O’Mally house on May 18, agents observed Ruby Guzman leave the house.
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They followed her to a nearby Burger King, where she met with Michael
Anthony Tovar and picked up a package from him before returning to the
O’Mally house.
The following day, agents saw Guzman leave the house with a
suitcase, place it in the trunk of her car, and drive to a Hilton hotel in
downtown Houston. There, she spoke with Jonathan Xie, 1 and he retrieved
the suitcase from the trunk of Guzman’s car and carried it into the hotel.
DEA Task Force Officer Alfonso Ceballos (TFO Ceballos) and DEA Agent
Amin Rosado followed Xie into the hotel; TFO Ceballos rode in the elevator
with Xie to the eleventh floor, and then Agent Rosado followed. They
watched Xie enter a guest room. Roughly thirty minutes later, Xie and
defendant Yu left the room. Yu was carrying the suitcase that Xie had
retrieved from Guzman, and Xie was rolling a second suitcase.
Xie and Yu reached the hotel lobby, where Agent Rosado approached
them, identified himself as law enforcement, and asked what was in Yu’s
suitcase. Yu responded, “my deposits.” Agent Rosado detained Xie and Yu
and called a canine officer; approximately ten to twenty minutes later, the
canine officer arrived, and the canine alerted to both suitcases. Agent Rosado
opened them and discovered that the suitcase that Yu was carrying contained
“five bundles individually wrapped with vacuum sealed bags and then two
separate money bundles with rubber bands strapped in—inside the suitcase”
totaling $269,000. The search was conducted without a warrant.
Based on the agents’ suspicion that the suitcase Yu was carrying was
the one that Guzman had transported to the hotel from the O’Mally house,
they obtained a warrant and searched the house. They found several bags of
_____________________
1
Xie was also charged as a co-conspirator and ultimately convicted. He appealed
his convictions, but voluntarily dismissed the appeal in August 2023.
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money, money counters, rubber bands, vacuum sealing bags, and vacuum
sealing machines. In total, agents found $432,116 hidden in the house.
B
The DEA task force continued to investigate the DTO in the months
following the May seizure. TFO Ronathan Persaud testified at trial that the
task force was informed that a man named Christian Benavides was traveling
to Houston to pick up some of the DTO’s money. Agents located Benavides
driving a white Range Rover and followed him to a Mi Tienda grocery store
in Pasadena, Texas. Garcia then arrived at the grocery store, and Benavides
followed her to a house on Tonkawa Circle in Pasadena. Garcia parked her
car on the street in front of the house while Benavides pulled his car into the
garage and closed the garage door.
Approximately twenty minutes later, Benavides left the Tonkawa
house in his Range Rover and drove to a hotel. TFO Persaud approached
Benavides, identified himself as law enforcement, and asked for consent to
search the vehicle, which Benavides provided. TFO Persaud and other
agents discovered cocaine and, in a hidden compartment, $196,715 cash in
food saver bags.
The agents returned to the Tonkawa house, where Agent Rosado
obtained Garcia’s consent to search the house. Garcia gave the agents a black
duffle bag that she said Luis Reyes, a DTO member who was the husband of
her cousin, had delivered to her earlier that day with money in it. Agent
Rosado asked Garcia how she had gotten involved with the DTO. She
explained she had met Benavides in Mexico and he “recruited her to the
organization.” She had received a call two days before the search with
instructions to go to the Tonkawa house and wait for someone to pick up
some money. Garcia informed Agent Rosado that this happened
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approximately twice a month, and she was paid between $500 and $600 each
time and permitted to stay at the Tonkawa house for free.
C
A federal grand jury returned a twenty-count indictment charging
twenty-eight individuals for their participation in the DTO. Yu and Garcia
were charged with conspiring to launder monetary instruments in violation
of 18 U.S.C. §§ 1956(h), 1956(a)(2)(A), and 1956(a)(1)(B)(I) 2 and aiding and
abetting money laundering in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 2.
Before trial, Yu moved to suppress the evidence agents obtained
during the May search. The district court denied Yu’s motion before the
Government responded and without a hearing.
At trial, the Government presented testimony from ten witnesses and
introduced dozens of exhibits. Four agents, two canine unit officers,
Guzman, Villarreal, Tovar, and Juan Villalobos testified regarding the
DTO’s activities and the details of the May and July searches. Based on his
training and experience, TFO Persaud testified about the relationship
between money laundering and drug smuggling activities. He specifically
noted that the DTO was located in Mexico, so “money laundering is
connected in it’s the way that money is returned for the purchase of
narcotics[.]” TFO Persaud and Agent Rosado also testified about
information they obtained using Title III intercepts (wire taps), including a
text message exchange between DTO members on May 19 referring to Xie
and Yu transporting money on behalf of the DTO. The exchange also alluded
to the “Chinos”—which the Government posits was a reference to Xie and
_____________________
2
Section 1956(a)(1)(B)(I) prohibits concealment money laundering. Yu and Garcia
were indicted under this section, but ultimately the jury was not asked to consider it.
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Yu—having been caught by law enforcement, and one DTO member asked
if they were okay.
Juan Villalobos testified about the DTO’s operations, his
involvement, and how money deliveries were arranged. He explained that he
worked for his brother, Santiago Villalobos, who was located in Mexico, and
that Santiago coordinated the movement of money from Houston to Mexico.
In order to verify Xie’s and Yu’s identities, Santiago would send the picture
of a one- or five-dollar bill to Juan, and Xie and Yu would have to present the
matching bill before they received the money to transport. Juan testified that
he delivered over a million dollars to Xie and Yu in April or May of 2016, and
Villarreal testified that he delivered more than a million dollars to Xie and Yu
over three transactions. The Government also presented hotel records
showing that Xie had reserved rooms at the Hilton hotel four times between
December 2015 and January 2016.
Yu presented no witnesses in his defense. Garcia testified on her own
behalf, rebutting the testimony of Agent Rosado; she presented no other
witnesses. The jury found Yu and Garcia guilty of both charges. Both moved
for a new trial and Yu also moved for a judgment of acquittal on the ground
that there was insufficient evidence to support the verdicts. The district court
denied all three motions.
Garcia was sentenced to two concurrent 78-month terms of
imprisonment and two concurrent 3-year terms of supervised release. Yu was
sentenced to two concurrent 151-month terms of imprisonment and two
concurrent 3-year terms of supervised release. After sentencing, Yu filed a
second motion for a new trial, asserting due process and ineffective assistance
of counsel claims. He averred that his first language was Cantonese, and his
trial counsel did not do an adequate job of ensuring that Yu understood every
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stage of his proceedings. Four days later—before the Government
responded—the district court denied Yu’s motion as untimely.
Garcia and Yu timely appealed.
II
Garcia and Yu argue that the evidence presented to the jury was
insufficient to prove their guilt beyond a reasonable doubt.
We review properly preserved sufficiency-of-the-evidence arguments
de novo. See United States v. Williams, 507 F.3d 905, 908 (5th Cir. 2007)
(citing United States v. Harris, 420 F.3d 467, 470 (5th Cir. 2005)). “Under
this standard, we determine whether a reasonable jury could find that the
evidence establishes the guilt of the defendant beyond a reasonable doubt.”
Id. (citing United States v. Lewis, 476 F.3d 369, 377 (5th Cir. 2007)). “Even
when examined de novo, ‘review of the sufficiency of the evidence is highly
deferential to the verdict.’” United States v. Davis, 735 F.3d 194, 198 (5th Cir.
2013) (quoting United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir.
2011)). Accordingly, we evaluate all evidence and draw all inferences in favor
of the prosecution. United States v. Freeman, 56 F.4th 1024, 1026 (5th Cir.
2023) (citing United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012)). But
“a verdict may not rest on mere suspicion, speculation, or conjecture, or on
an overly attenuated piling of inference on inference.” United States v.
Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996); see also United States v.
Fitzharris, 633 F.2d 416, 422 (5th Cir. 1980) (“[A] conviction cannot rest on
an unwarranted inference, the determination of which is a matter of law.”).
Yu and Garcia properly preserved their challenges to the sufficiency
of the evidence below. They were both convicted of conspiracy to launder
monetary instruments in violation of 18 U.S.C. §§ 1956(h) and 1956(a)(2)(A)
and aiding and abetting money laundering in violation of 18 U.S.C. §§
1956(a)(2)(A) and 2. Their convictions were based on the same substantive
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money laundering offense—often termed “promotion money laundering,”
see, e.g., United States v. Trejo, 610 F.3d 308, 310 (5th Cir. 2010) (quotation
omitted)—which prohibits the transportation of money to or from another
country “with the intent to promote the carrying on of specified unlawful
activity.” 18 U.S.C. § 1956(a)(2)(A). Here, the indicted “specified unlawful
activity” was “the distribution of a controlled substance.”
To convict a defendant of promotion money laundering, the
Government must prove the defendant (1) transported or attempted to
transport money between the United States and another country (2) “with
the intent to promote the carrying on of specified unlawful activity.” 18
U.S.C. § 1956(a)(2)(A); see also Trejo, 610 F.3d at 313–14. To establish
conspiracy to commit money laundering, the Government must prove the
defendant “(1) conspired (2) to transport funds between the United States
and another country; (3) with the intent to promote the carrying on of a
specified unlawful activity.” Trejo, 610 F.3d at 313–14.
A
Garcia argues the Government failed to present sufficient evidence as
to every element of both convictions.
1
Garcia first contends that the Government did not present sufficient
evidence that she engaged in a conspiracy to launder monetary instruments.
She maintains that the indicted conspiracy pertained only to the events
surrounding the May search, and that she therefore was not involved in the
conspiracy as alleged in the indictment.
Count Two of the indictment is not limited—expressly or impliedly—
to the May search. It lists a number of co-conspirators—including, but not
limited to, Garcia, Yu, Xie, Tovar, and Guzman—and sets out the conduct
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they engaged in that violated § 1956, without any reference to exact dates or
locations. Moreover, nothing in the jury instructions pertaining to this count
narrowed its reach to only the May search. Garcia’s first argument is
unavailing.
2
Garcia next maintains there is no evidence to support the jury’s
conclusion she entered into an agreement to transport money between the
United States and another country.
“We have specifically stated in the context of a sufficiency challenge
to a money-laundering conspiracy that direct evidence ‘is unnecessary; each
element may be inferred from circumstantial evidence.” United States v.
Cessa, 785 F.3d 165, 174 (5th Cir. 2015) (quoting United States v. Fuchs, 467
F.3d 889, 906 (5th Cir. 2006)). In particular, “the agreement element ‘may
be inferred from a concert of action.’” Id. (quoting Fuchs, 467 F.3d at 906).
Agent Rosado testified at trial that Garcia informed him that she was
recruited into the DTO by Benavides in Mexico. Approximately twice a
month, she said, she would receive a phone call from someone named El
Viejo with instructions to go to the Tonkawa house and wait for money to be
delivered. She did so in July 2016, and she received a bag full of money from
her cousin’s husband, Luis Reyes. Additionally, Agent Rosado and TFO
Persaud testified they witnessed Garcia meet with Benavides and lead him
back to the Tonkawa house. There, Benavides pulled into the garage and
closed the garage door; when he left twenty minutes later, agents followed
him to a hotel, searched his vehicle, and discovered $196,715 in a hidden
panel in his car. This testimony is sufficient circumstantial evidence of an
agreement between Garcia, El Viejo, and Benavides to transport the money
that was found in Benavides’s car. A reasonable jury could infer from this
evidence that the purpose of that agreement was to transport money from the
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United States to another country—Mexico—based on the fact that Garcia
was recruited by Benavides in Mexico.
The Government presented sufficient evidence that Garcia entered
into an agreement to transport money between the United States and
Mexico.
3
Garcia contends that the Government did not present sufficient
evidence of her intent to promote the distribution of a controlled substance.
Section 1956(a)(2)(A)’s intent requirement is “stringent.” Trejo, 610
F.3d at 315. In Trejo, we held a guilty plea that “unmistakabl[y] demonstrated
that [the defendant] entered into a paid arrangement with a drug dealer . . . to
load [the defendant’s] car with drug money and transport it from Florida to
a presumed trafficker in Mexico” was insufficient to support a finding the
defendant intended to promote the drug trafficking activity. Id. at 318. We
explained:
“knowing promotion” is not enough for a conviction under the
federal money laundering statute. . . . Instead the facts must
demonstrate that, in transporting the funds, [the defendant]
not only promoted the underlying drug trafficking business but
that his intended purpose in so doing—an end-goal, if you
will—was to further the progress of the drug business. . . . In
other words, there must be “more” than simply the bare act of
knowingly transporting the drug money. Otherwise, every
mere transportation of drug money in this manner would also
qualify as a money laundering offense.
Id. at 317 (internal citations omitted) (quoting United States v. Brown,
186 F.3d 661, 670 (5th Cir. 1999)).
We also indicated, however, that evidence the defendant
“knew something about the inner workings of the drug organization”
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or of “the defendant’s direct involvement in the illegal enterprise”
may support a finding of the requisite intent. Id. at 316. In many of our
cases addressing § 1956(a)(2)(A)’s intent element and those of
analogous statutes, the defendants have been exposed to or told about
drugs. See, e.g., United States v. Alaniz, 726 F.3d 586, 602–03 (5th Cir.
2013); United States v. Calderon, 665 F. App’x 356, 363 (5th Cir. 2016)
(per curiam) (unpublished). But several of our sister circuits have held
a defendant’s extensive participation in an organization is sufficient
circumstantial evidence that he knew of the organization’s illicit
activities. See, e.g., United States v. Prince, 618 F.3d 551, 560 (6th Cir.
2010); United States v. Huezo, 546 F.3d 174, 182 (2d Cir. 2008).
Juan Villalobos’s testimony established that the DTO was
engaged in drug trafficking. Garcia was recruited to join the DTO by
Benavides in Mexico and subsequently made several trips to the
Tonkawa house. She knew that large sums of money were delivered to
the house, and she interacted with at least three different people as
part of the events leading up to the July search. Circumstantial
evidence suggests Garcia knew that the money was then concealed
inside Benavides’s vehicle. Although the Government did not present
direct evidence tying Garcia, Benavides, El Viejo, or Reyes to the
DTO specifically, it did provide circumstantial evidence linking the
July search to the DTO’s activities. For example, agents testified to
the DTO’s practice of transporting money in vacuum-sealed bags
placed in hidden compartments inside cars. This evidence, though
limited, is sufficient to prove that Garcia intended to promote the
DTO’s unlawful ends.
Garcia’s sufficiency challenge to the specific intent element of
her conviction under § 1956(a)(2)(A) fails.
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4
Finally, Garcia argues that the evidence of her aiding and abetting
money laundering was insufficient.
“To prove that a defendant aided and abetted money laundering, the
government must show that the defendant ‘associated himself with the
unlawful financial manipulations, that he participated in them as something
he wished to bring about, and that he sought, by his actions, to make the effort
succeed.’” United States v. Willey, 57 F.3d 1374, 1383 (5th Cir. 1995) (quoting
United States v. Termini, 992 F.2d 879, 881 (8th Cir. 1993)). “A defendant
associates himself with the unlawful financial manipulations if he shares in
the criminal intent of the principal. . . . And he participates in those
manipulations if he engages in some affirmative conduct designed to aid the
conduct.” United States v. Delgado, 256 F.3d 264, 276 (5th Cir. 2001)
(internal citation omitted) (citing United States v. Sorrells, 145 F.3d 744, 753
(5th Cir. 1998)).
The evidence discussed above in the context of Garcia’s challenge to
the specific intent element of her conspiracy conviction is also probative of
her association with the unlawful financial manipulations involved here.
Because we conclude that the Government proved, beyond a reasonable
doubt, that Garcia intended to promote the distribution of a controlled
substance, it presented sufficient evidence to prove the first element of the
aiding and abetting charge.
A defendant participates in the unlawful conduct if she affirmatively
acts to aid it. Delgado, 256 F.3d at 276. Agent Rosado’s testimony regarding
Garcia’s involvement with the DTO and Agent Rosado’s and TFO
Persaud’s testimony about her interaction with Benavides support this
element of the aiding and abetting charge. From this evidence, a reasonable
jury could find that Garcia affirmatively acted to aid the unlawful financial
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manipulations. This evidence is also sufficient to prove beyond a reasonable
doubt that Garcia “sought, by [her] actions, to make the effort succeed.”
Willey, 57 F.3d at 1383.
Therefore, the evidence was sufficient to convict Garcia of aiding and
abetting money laundering in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 2.
B
Yu argues that there was insufficient evidence as to the specific
intent element of both offenses.
As discussed, Trejo established that the requisite intent to support a
conviction under § 1956(a)(2)(A) is difficult to prove. 610 F.3d at 315. But
again, extensive involvement in the organization can suggest an intent to
promote its unlawful goals. See Huezo, 546 F.3d at 182 (“Based on the
complexity and scale of the money laundering scheme, common sense and
experience would support an inference that the principals in the conspiracy
would not have trusted an outsider (with no knowledge of their criminal
purpose) to transport $1 million in laundered funds[.]”). And in the closely
related transaction money laundering context, we have noted that “the
Government must present either direct proof of an intent to promote such
illegal activity or proof that a given type of transaction, on its face, indicates
an intent to promote such illegal activity.” United States v. Miles, 360 F.3d
472, 477 (5th Cir. 2004).
Yu’s statement that the suitcase contained his “deposits” indicates
that he was aware of the contents of the suitcase. Testimony from Villarreal
and Juan Villalobos revealed Yu regularly interacted with several members of
the DTO, and he transported large sums of money for the organization on at
least three separate occasions. Given the scale of the DTO’s operations, that
it trusted Yu with millions of dollars multiple times, and Yu’s interactions
with several different members of the DTO, a reasonable jury could infer that
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Yu was aware of the DTO’s drug trafficking activity and intended to promote
it. The evidence was sufficient to establish, at the least, that Yu engaged in
“a given type of transaction [that], on its face, indicates an intent to
promote” drug trafficking. Miles, 360 F.3d at 477.
Yu relies on three circuit court decisions in arguing that the evidence
was insufficient to establish intent, but all three are distinguishable. In Trejo,
the defendant “signed on for a one-time trip to transport drug money for a
dealer he did not know and, except for the one trip, had never worked for in
the past.” 610 F.3d at 318 (emphasis added). Additionally, “[e]vidence
regarding the inner workings of the organization that hired him—assuming
that an operation existed beyond [one drug dealer]—[was] virtually
nonexistent in the record.” Id. Finally, “the record lack[ed] facts regarding
the individuals to whom [the defendant] was delivering the money and the
nature of their ongoing activities, if any, beyond the one delivery.” Id. Here,
the Government presented evidence as to each of these facts. Witnesses
testified that Yu engaged in multiple transactions with the DTO, that the
DTO was extensively involved in the drug trafficking business, and that Yu
interacted with several individuals within the organization. These facts
differentiate Yu’s circumstances from those of the defendant in Trejo.
Yu’s actions are also meaningfully different from the defendant’s
actions in Cessa. There, we vacated the conviction of a horse trainer for a
concealment money-laundering conspiracy because there was insufficient
evidence to show he knew his horse training services were designed to
conceal drug money. 785 F.3d at 179. Unlike horse training—which, without
more, does not raise suspicions that it is furthering the goals of a drug
trafficking organization—Yu’s actions involved transporting large sums of
vacuum-sealed money with no apparent legitimate source. Cessa is therefore
inapposite.
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Finally, in United States v. Adams, the Seventh Circuit vacated a
conviction for a promotional money-laundering conspiracy based on
insufficient evidence the defendant’s co-conspirator had the intent to
promote the carrying on of an unlawful activity. 625 F.3d 371, 382 (7th Cir.
2010). The defendant instructed his purported co-conspirator to purchase
postal money orders in structured amounts and at different locations. Id. at
381. Unlike Yu, the co-conspirator in Adams was operating under instructions
from one individual who used the money at issue for a “variety of purposes,
some related to his drug trafficking . . . and some not . . . for example, the
purchase of a restored Fleetwood Cadillac automobile and the rent on his
apartment.” Id. at 375. The evidence here indicates Yu knew he was moving
money for an organization, presumably with a unifying purpose, rather than
just one individual with mixed motives.
For these reasons, Yu’s sufficiency challenge fails as to both his
conspiracy to commit money laundering conviction and his aiding and
abetting money laundering conviction.
III
Garcia maintains that the district court erred in assessing a six-level
sentencing enhancement.
We review a trial court’s application and interpretation of the
sentencing guidelines de novo and its findings of fact for clear error. United
States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012) (citing United
States v. Gharbi, 510 F.3d 550, 554 (5th Cir. 2007)). “A sentence within the
properly calculated Guidelines range is presumed reasonable on appeal.”
United States v. Fernandez, 559 F.3d 303, 319 (5th Cir. 2009).
Under U.S.S.G. § 2S1.1(b)(1), if the defendant “knew or believed that
any of the laundered funds were the proceeds of, or were intended to promote
[] an offense involving the manufacture, importation, or distribution of a
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controlled substance[,]” the base offense level for that defendant should be
increased by 6 levels. For this enhancement to apply, the district court must
“find, by a preponderance of the evidence, that [the defendant] knew the
laundered funds were the proceeds of drug sales[.]” United States v.
Pendleton, 761 F. App’x 339, 355 (5th Cir. 2019) (per curiam) (citing U.S.S.G.
§ 2S1.1(b)(1)).
Here, Garcia argues that there is no evidence that she knew any of the
laundered funds were proceeds of or were intended to promote a drug
trafficking offense. This issue overlaps considerably with our analysis above
regarding the sufficiency of the evidence supporting Garcia’s underlying
conviction. Because we conclude that there was sufficient evidence to convict
Garcia of money laundering, including evidence that she intended to promote
the unlawful distribution of a controlled substance, we also hold that the
district court properly imposed a sentencing enhancement under U.S.S.G. §
2S1.1(b)(1). See Fernandez, 559 F.3d at 320 (“The jury had to find that [the
defendant] was aware the proceeds stemmed from controlled-substance
violations in order to convict him of the money laundering counts. It was not
error for the district court to make the same finding.”). Additionally, the
district court expressly imposed a sentence on the lower end of Garcia’s
Guidelines range; the sentence is therefore presumed reasonable on appeal,
and we find no basis in the record to disturb it.
IV
Yu contends that the district court improperly denied his motion to
suppress without first conducting an evidentiary hearing.
A
We review a district court’s declination to conduct a suppression
hearing for abuse of discretion, subject to a harmless error analysis. United
States v. Smith, 977 F.3d 431, 434 (5th Cir. 2020) (citing United States v.
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Harrelson, 705 F.2d 733, 737 (5th Cir. 1983)). “A district court abuses its
discretion ‘if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.’” Id. (quoting United States v. Mann, 161 F.3d
840, 860 (5th Cir. 1998)). A hearing on a motion to suppress is “not granted
as a matter of course” and is required “only when necessary to receive
evidence of an issue of fact.” Harrelson, 705 F.3d at 737. To be entitled to a
hearing, the movant must “allege[] sufficient facts which, if proven, would
justify relief.” Id. (citing United States v. Smith, 546 F.2d 1275, 1279–80 (5th
Cir. 1977)).
Here, Yu presented only a vague three-sentence affidavit in support
of his motion to suppress. It stated, in its entirety:
On May 19, 2016, the Defendant was detained at the lobby of a
hotel in Harris County, Texas.
Agents detained the Defendant and proceeded to search a large
black suitcase in his possession. The agents discovered a large
amount of cash in the suitcase.
The Defendant claims he did no [sic] consent to his detention
nor to the search of the suitcase.
This evidence does not suggest that relief was warranted. For example, it
does not establish what was happening directly before the search, and it does
not even establish that a warrantless search took place. Accordingly, the
district court did not abuse its discretion when it declined to conduct an
evidentiary hearing before ruling on the motion to suppress. See United States
v. Regan, 832 F. App’x 898, 899 (5th Cir. 2021) (per curiam) (affirming
district court’s decision not to conduct a hearing where movant provided
only “bare assertions, with no supporting details or facts”).
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B
Yu further maintains that the court improperly denied his motion to
suppress because it reversed the applicable burden of proof.
“When reviewing the denial of a motion to suppress, we review
questions of law de novo and findings of fact for clear error.” United States v.
McKinney, 980 F.3d 485, 491 (5th Cir. 2020) (citing United States v. Bolden,
508 F.3d 204, 205 (5th Cir. 2007)). The evidence is, again, viewed in the light
most favorable to the Government, as the prevailing party below. United
States v. Jefferson, 89 F.4th 494, 502 (5th Cir. 2023). In reviewing the district
court’s decision, we may “consider all of the evidence presented at trial, not
just that presented before the ruling on the suppression motion[.]” United
States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007). The decision is also subject
to a harmless error analysis. See United States v. Willingham, 310 F.3d 367,
372 (5th Cir. 2002). “In the context of suppression of evidence, the test for
harmless error is whether the trier of fact would have found the defendant
guilty beyond a reasonable doubt if the evidence had been suppressed.”
United States v. Aucoin, 964 F.2d 1492, 1499 (5th Cir. 1992) (internal
quotations omitted and alterations adopted).
“The proponent of a motion to suppress has the burden of proving,
by a preponderance of evidence, that the evidence in question was obtained
in violation of his Fourth Amendment rights.” United States v. Smith, 978
F.2d 171, 176 (5th Cir. 1992). To do so, the movant must show two things:
First, he must show that a government activity intruded upon
a reasonable expectation of privacy in such a significant way
that the activity can be called a “search.” Second, if a search
has in fact occurred, [the movant] must show that the
government intrusion was unreasonable given the particular
facts of the case.
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Id. (citing United States v. York, 895 F.2d 1026, 1028 (5th Cir. 1990)). This
may require the movant to present evidence of the circumstances
surrounding the search, for instance to establish that he had a reasonable
expectation of privacy in the object of the search. See id. at 180–81 (noting
that the movant has the burden of showing that the search violated his Fourth
Amendment rights and that he failed to allege sufficient particularized facts
to prove that he had a reasonable expectation of privacy in his phone
conversation).
Yu correctly argues that we have previously employed a burden-
shifting framework when analyzing motions to suppress. But he overlooks the
critical first step in that framework: Yu, as the proponent of the motion to
suppress, must first “produce[] evidence that he was arrested or subject to
search without a warrant” and only then will “the burden shift[] to the
government to justify the warrantless search.” United States v. Roch, 5 F.3d
894, 897 (5th Cir. 1993) (quoting United States v. de la Fuente, 548 F.2d 528,
533 (5th Cir. 1977)).
Here, Yu’s affidavit did not even establish that the search occurred
without a warrant. Although the motion to suppress alleged a warrantless
search, “counsel’s statements in [a] motion and subsequent briefs are not
evidence.” See INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984). It was first
Yu’s burden to “produce[] evidence” that the search violated his Fourth
Amendment rights. Roch, 5 F.3d at 897 (emphasis added). His skeletal
affidavit did not suffice, so the district court correctly denied his motion to
suppress.
Even if the district court improperly denied the motion, any error in
doing so was harmless. When reviewing a decision on a motion to suppress,
we are free to consider all evidence presented at trial to determine “whether
the trier of fact would have found the defendant guilty beyond a reasonable
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doubt if the evidence had been suppressed.” Aucoin, 946 F.2d at 1499. As we
have noted already, testimony from several witnesses at trial established Yu’s
connection to the DTO. He moved millions of dollars for the organization on
at least three occasions, and agents testified to the events leading up to the
May search, corroborating the contents of the suitcase and Yu’s involvement
in transporting it. The evidence was sufficient to convict Yu even if the
motion to suppress had been granted.
V
Finally, Yu argues that the district court erred in denying his motion
for a new trial as untimely. He specifically objects to the district court’s sua
sponte dismissal of his motion based on timeliness before the Government
responded.
We review a district court’s denial of a motion for new trial for abuse
of discretion. United States v. Barraza, 655 F.3d 375, 379 (5th Cir. 2011)
(citing United States v. Bishop, 264 F.3d 535, 554 (5th Cir. 2001)). Federal
Rule of Criminal Procedure 33 requires a defendant to file a motion for new
trial that is based upon grounds other than newly discovered evidence within
fourteen days after a verdict is rendered. Fed. R. Crim. P. 33(b)(2). The
Supreme Court has characterized Rule 33 as a non-jurisdictional claim-
processing rule; as a result, the defense of untimeliness can be forfeited if the
Government fails to raise it in response to a motion for new trial. Eberhart v.
United States, 546 U.S. 12, 19 (2005). In an unpublished opinion, we have
held that “[a] district court does not err, after Eberhart, if it enforces an
inflexible claim processing rule, and we may not reverse its decision to do
so.” United States v. Bouldin, 466 F. App’x 327, 328 (5th Cir. 2012)
(unpublished) (per curiam) (internal quotation marks omitted) (quoting
United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006)); see also
Leijano-Cruz, 473 F.3d at 574 (noting that Eberhart established only the
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principle that “a district court’s decision to permit an untimely document to
be considered could not be reversed in the absence of an objection by the
government in the district court[,]” and not the principle “that a
defendant . . . has a right to have [his] untimeliness disregarded”).
Here, Yu was convicted on April 14, 2022. He filed his second motion
for a new trial on February 27, 2023. In it, he asserted only due process and
ineffective assistance of counsel claims. Because his motion for new trial was
not based on newly discovered evidence, it had to be filed within fourteen
days of the date of the verdict. Because it was not, the district court did not
abuse its discretion in denying the motion as untimely, even absent a
response from the Government.
VI
For the foregoing reasons, the judgments of the district court are
AFFIRMED.
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