Petition for Writ of Certiorari — Ronnie Junior Rodriguez, Petitioner v. United States

Case: 1741822 •Date Filed: 05/24/2018 Page: 1 of 12

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-11822

Non-Argument Calendar

D.C. Docket No. 1:16-cr-20744-JEM-1

UNITED STATES OF AMERICA,.

versus

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RONNIE JUNIOR RODRIGUEZ,

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Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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4fle1r,lLk

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(May 24, 2018)

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Before TJOFLAT, MARTIN, and FAY, Circuit Judges.

PER CURTAM:

Ronnie Junior Rodriguez appeals his conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. 922(g)(1) He argues the

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district court's denial of his motions to continue his jury trial and to suppress

evidence as "untimely" violated his due process rights by depriving him of an

adequate opportunity to prepare his case and present his defense. He also argues

the district court's evidentiary rulings limiting his ability to cross-examine the

government's witnesses and excluding impeachment evidence about those

witnesses deprived him of his right to a fair trial. After careful review, we affirm.

I. BACKGROUND

A.

PRETRIAL MOTIONS

Rodr4ghr-ged-with-the §

2016. Due to his indigent status, he was appointed a federal public defender. The

court set the pretrial motions deadline for January 23, 2017, and trial for February

6, 2017. On January 4, 2017, Rodriguez filed a pro se motion to suppress

evidence. The court struck the pro se motion two days later because Rodriguez

was represented by counsel. Rodriguez moved to represent himself on January 23,

2017. The district court referred the motion to a magistrate judge.

The magistrate judge held a hearing on the motion on January30, 2017,

seven days before trial. The magistrate judge explained that Rodriguez's request to

represent himself was a "very bad idea" and that, if granted, he "would not be able

to later on challenge what happened at the trial or at sentencing based on the fact

that [he] represented [himself]." The magistrate judge also explained trial-related

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consequences of Rodriguez's request to represent himself, including that he

wouldn't be given "any special breaks or advantages as a result of [] being pro se";

that his failure to object may mean evidence comes in that otherwise wouldn't; and

that even if he objects, his failure to base the objection on a proper rule of evidence

means he "could lose an objection that [he] might otherwise win on." When asked

why he wanted to represent himself despite advice to the contrary, Rodriguez

answered, "Practically, sir, nobody is going to face.. the time and sit back there but

me, so why would I care what anybody thinks? I'm the one doing the time, sir.

Rodriguez also asked that the trial be continued. The magistrate judge said

that request would have to be made to the district court judge, The magistrate

judge twice warned Rodriguez that if his request to proceed pro se was granted,

"you might suddenly have to go to trial a lot quicker than you wanted to and

perhaps.. without enough time to do further investigation and further

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preparation" and that the district court judge "perhaps will not- be continuing any

deadlines." Rodriguez twice agreed that he "underst[ood] and accept[ed] those

risks."

The magistrate judge granted Rodriguez's request to represent himself. The

judge also permitted Rodriguez's appointed counsel to act as standby counsel

during trial, but told Rodriguez that "the filings, the motions will come from you

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and you alone." Before the hearing ended, the magistrate judge repeated that any

continuance requests would have to be raised by Rodriguez to the district court

judge. The next day Rodriguez mailed his renewed motion to suppress.

On February 2, 2017, the district court held a calendar call. Rodriguez

presented his motion for a continuance, which the court denied. The court told

Rodriguez that it wasn't going to grant him a continuance just because he "got in

late." However, the court would consider it ifRodriguez could "articulate specific

things that you want to do and specific reasons why you haven't been able to do it

and you can do that by the close of business tomorrow." When Rodriguez asked

how to get a motion to the court, his standby counsel offered to pick it up from him

the next morning and file it with the court in the afternoon. Moving on to trial

procedure, the district court explained to Rodriguez that his pro se status "does not

mean that the [Federal] Rules of Evidence do not apply to you." Although

Rodriguez could ask his standby counsel for help, "it's your case. You are

representing yourself." Rodriguez did not mention his motion to suppress during

the calendar call.

The district court received Rodriguez's motion to suppress on February 6,

2017, which was also the first day of trial. It was docketed at 3:44 PM. The

district court asked Rodriguez what he wanted to suppress. Rodriguez answered,

"The firearm

because it's the only thing, it's the case basically." The court

...

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denied-the motion. The court said that the firearm had already been introduced

into evidence earlier that day without objection from Rodriguez. It also noted that

Rodriguez had not mentioned the motion to suppress to the court, and thus the

motion was untimely. Finally, the court determined that there wasn't a basis for

suppressing the firearm "even assuming all of these things" Rodriguez said in his

motion.

Miami police officer Handerson Damier testified at trial to the following.

On February 19, 2016, Officers Damier, Pierre Chery, and Josterly Mitael were

responding to an unrelated Crime Stoppers tip when Officer Damier saw two men

fighting in an empty lot. Officer Chery pulled into the lot, and Officer Damier got

out of the car, saying, "Miami police, stop." As he was doing so, he saw

Rodriguez take off running, pull out a gun, and toss it over a wooden fence.

Officer Damier turned on his body camera and ran after him. During the chase, he

saw Rodriguez take things out of his pockets and throw them over a chain-link

fence. After Rodriguez was caught, he said to the officers, "Set me up, huh?

Entrapment. It's entrapment." The officers then retrieved the gun and the things

Officer Damier had seen Rodriguez toss, which turned out to be marijuana and

some money.

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Officer Chery testified as well. He said that he saw Rodriguez holding a gun

to the other man's head when he drove the police car into the lot. On crossexamination, Rodriguez attempted to show that this contradicted Officer Chery's

testimony in a deposition related to a state charge against Rodriguez. Twice

Officer Chery said he didn't remember giving the deposition and twice the district

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court told Rodriguez to "[m]ove on." With the help of standby counsel, Rodriguezgave the deposition transcript to Officer Chery .and asked him if it refreshed his

recollection. Officer Chery answered no and the district court told Rodriguez to

"[m]ove on." When Rodriguez accused Officer Chery of lying based on his statecourt deposition, the. district court told Rodriguez that he couldn't just say that, but

"ha[d] to prove it." Rodriguez then tried to get the deposition transcript admitted

into evidence. The prosecutor objected on hearsay grounds. The court told

Rodriguez to ask his standby counsel later to "find out if you can do it, how to do

it." Rodriguez finished his cross-examination of Officer. Chery, but did not move

to admit the deposition into evidence again. Later, when asked whether it was

being offered into evidence, standby counsel said no.

Angel Rodriguez ("Angel"), the man Rodriguez had been seen fighting with,

also testified. Before he did, the government moved to exclude Facebook pictures

showing Angel with guns as unduly prejudicial and irrelevant. Standby counsel

sought to admit them under Federal Rule of Evidence 404(b)(2), arguing Angel's.

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prior ownership of guns showed he had the "intent, opportunity, ability" to- have

possessed the gun found behind the wooden fence. In light of the photos'

prejudicial, nature, the district court excluded them but said they could be

introduced as impeachment evidence if Angel denied owning guns. Standby

counsel offered the photos into evidence after Angel's testimony, but the district

court again excluded them.

Angel testified he was at a store, already having taken one or two Xanax and

looking to buy a "Dutch" to use to smoke marijuana, when he was approached by

Rodriguez. Rodriguez asked if he wanted to smoke weed, and Angel said yes.

The two left the store and walked a block to a "little field." There, Rodriguez

pointed a gun at Angel and demanded his money. After Angel handed over his

money, police pulled up, and Rodriguez ran and threw the gun over the wooden

fence. Angel was interviewed by the officers and said he told them the "same

story." However, he did not remember being questioned by detectives after that

day or participating in a recorded interview. On cross-examination, Angel

admitted to prior convictions for burglary and strong arm robbery, and that he was

currently in jail for another burglary. He admitted owning guns when he was

younger and posting, photos of himself with guns on Facebook. When asked again

whether he remembered being interviewed after February 19th, he said no.

However, Angel did remember telling law enforcement on April .15, 2016 that he

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was "incoherent" on February 19th and "had no recollection of what occurred" that

day. The district court sustained the government's objection to the playing of a

video showing Angel making that statement because Angel had "already said that."

The jury found Rodriguez guilty. He was sentenced to 120 months in

prison. This appeal followed.

II.

MOTIONS TO CONTINUE AND TO SUPPRESS

Although "[t]he matter of [a] continuance is traditionally within the discretion

of the trial judge," a denial may in some circumstances interfere with or undermine

a defendant's right to counsel and to defend against the charge. Ungar v. Sarafite,

376 U.S. 575, 589, 84 S. Ct. 841, 849-50 (1964). Whether a denial is "so arbitrary

as to violate due process" depends on the surrounding circumstances, "particularly

in the reasons presented to the trial judge at the time the request is denied." jçj at

589, 84 S. Ct. at 850. Thus, "{t]o prevail on such a claim, a defendant must show

that the denial of the motion for continuance was an abuse of discretion which

resulted in specific substantial prejudice." United States v. Verderarne, 51 F.3d

249, 251 (11th Cir. 1995).

Rodriguez argues that the district court's denial of his continuance request

was an abuse of discretion because it effectively denied him a hearing on his

motion to suppress. However, Rodriguez never mentioned the motion to suppress

at the calendar call. And although the district court gave Rodriguez a one-day

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extension to give his reasons for requesting a continuance, Rodriguez never made

any such request. As the district court said when the motion to suppress was

finally presented, "How can I deal with [a motion] if I don't know about [it]?"

Beyond that, when the government offered the gun into evidence, Rodriguez said,

without prompting, "No objection, Your Honor."

The motion to suppress was not timely, and the district court did not abuse its

discretion in denying the continuance.' $

Ungar, 376 U.S. at 589, 84 S.Ct. at

8 49-50; Verderame, 51 F.3d at 251.

III. EVIDENTIARY RULINGS

A district court has "discretionary authority to rule on the admissibility of

evidence, including the power to limit cross-examination." United States v.

Garcia, 13 F.3d 1464, 1468 (11th Cir. 1994) However, this discretion is limited

by the defendant's right "to be confronted with the witnesses against him," U.S.

Const. amend. VI, and "to be heard" and "to offer evidence of his own," Specht v.

Patterson. 386 U.S. 605, 610, 87 S. Ct. 1209, 1212 (1967). "In particular, crossexamination of a government 'star' witness is important, and a presumption favors

free cross-examination on possible bias, motive, ability to perceive and remember,

To the extent Rodriguez claims the denial of a continuance violated his due process

rights because it denied him adequate preparation time "for the filing of other pretrial motions

and to review the paperwork," this is the same .vague requesC he made to the district court at

calendar call. The district court granted Rodriguez time to explain his reasons in more detail,

and Rodriguez failed to do so. Thus, the court did not abuse its discretion in denying a

continuance on this basis either. See Ungar, 376 U.S. at 589, 84 S. Ct. at 850.

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and general character for truthfulness." United States v. Maxwell, 579 F.3d 1282,

1295-96 (11th Cir. 2009) (quotation omitted and alteration adopted).

That being said, "the Confrontation Clause guarantees only an opportunity

for effective cross-examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish." Kentucky v. Stincer, 482

U.S. 7305 739, 107 S. Ct. 2658, 2664 (1987) (quotation and emphasis omitted); see

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (19 86)

("[T]rial judges retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such cross-.examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues,

the witness' [s] safety, or interrogation that is repetitive or only marginally

relevant."). And even an erroneous exclusion of evidence doesn't warrant reversal

if the "error was harmless beyond a reasonable doubt." United States v. Hum, 368

F.3d 1359, 1362-63 (11th Cir. 2004) (quoting Chapman v. California, 368 U.S. 18,

24, 87 S. Ct. 824, 828 (1967)). When a defendant gets the "essence of the desired

[evidence] before the jury," his compulsory due process rights have not been

prejudiced. United States v. Buckley, 586 F.2d 498, 503 (5th Cir. 1978).2

I Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 198 1) (en bane), we adopted as

binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.

Id. at 1209.

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Rodriguez argues the district court's exclusion of Angel's recorded

interview, the Facebook gun pictures, and Officer Chery's deposition transcript, as

well as the court's limitations on Angel's and Officer Chery's cross-examinations,

deprived him of his right to a fair trial. We disagree.

First, there was no compulsory due process violation in the exclusion of the

deposition transcript. The district court later offered Rodriguez an opportunity to

renew his request to admit the deposition into evidence and his standby counsel

declined it. Second, even assuming it was error to exclude the recorded interview

or the gun pictures, it was harmless since Rodriguez got the essence of his desired

evidence before the jury. See 14 Angel admitted to owning guns, to posting

photos on Facebook of himself with guns, and to telling detectives on April 15,

2016 that he was "incoherent" on February 19th and "had no recollection of what

occurred" that day.

Third, the district court did not abuse its discretion with respect to

limitations on Angel's and Officer Chery's cross-examinations. See Maxwell, 579

F.3d at 1296 (reviewing a claim of improper limitations on cross-examination for

abuse of discretion). To begin, other than the district court's refusal to admit

Angel's recorded interview or his gun pictures, which we have already said was

harmless, there is nothing in the record indicating a limitation on Angel's crossexamination. As to Officer Chery, the district court's instructions to Rodriguez to

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"[m]ove on" after Officer Chery twice said he didn't remember giving a deposition

did not impermissibly limit the cross-examination .because the court also allowed

Rodriguez to try to refresh Officer Chery's recollection. Similarly, the third

"[m]ove on" instruction also wasn't an abuse of discretion because the district

court explained to Rodriguez that he couldn't just accuse Officer Chery of perjury,

but had to prove it, and gave him an opportunity to put-the deposition in evidence.

The record shows the court was trying to ensure that the testimony was taken in

accord with the Federal Rules of Evidence and to minimize delay. This was

comfortably within the district court's discretion. See Kentucky, 482 U.S. at 739,

107 S. Ct. at 2664; Delaware, 475 U.S. at 679, 106 S. Ct. at 1435.

AFFIRMED.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-11522-CC

UNITED STATES OF AMERICA.

Plaintiff- Appellee,

versus

RONNIE JUNIOR RODRIGUEZ,

Defendant Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

ON PETITION(S) FOR REHEARING AND PETITrON(S) FOR REHEARING EN BANC

BEFORE: TJOFLAT, MARTIN, and PAY. Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENTED and no Judge in regular active service on the Court

having requested that the Court be polled on rehearing en bane (Rule 35, Federal Rules of

Appellate Procedure), the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT.:

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/L4j..

UNITED TATES CIRCUIT JUDGE