                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                 U.S. COURT OF APPEALS
                                            No. 11-11429           ELEVENTH CIRCUIT
                                                                        JAN 6, 2012
                                        Non-Argument Calendar
                                                                        JOHN LEY
                                      ________________________            CLERK

                                D.C. Docket No. 1:10-cr-20009-UU-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff - Appellee,

                                             versus


LUIS ENRIQUEZ LORENZO RODRIGUEZ,

llllllllllllllllllllllllllllllllllllllll                          Defendant - Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (January 6, 2012)

Before BARKETT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
      Luis Enriquez Lorenzo Rodriguez appeals his convictions for possession

and conspiracy to possess with intent to distribute a controlled substance, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; conspiracy and attempt to

obstruct, delay, and affect commerce by means of robbery, in violation of the

Hobbs Act, 18 U.S.C. § 1951(a); and possession and discharge of a firearm in

furtherance of a crime of violence and a drug-trafficking crime, in violation of 18

U.S.C. §§ 924(c)(1)(A)(i), (c)(1)(A)(iii), and 2. On appeal, Lorenzo Rodriguez

argues that the district court erred in denying his motion for judgment of acquittal

on the Hobbs Act charges due to insufficient proof of a substantial effect on

interstate commerce. He also challenges the district court’s admission of a

witness’s pretrial photographic identification and her in-court testimony related to

the identification. Next, the Lorenzo Rodriguez alleges that the district court

improperly admitted highly prejudicial propensity evidence of his involvement in

previous home-invasion robberies. Fourth, he states that the district court erred by

admitting a detective’s testimony about the location from which various cell phone

calls originated. Fifth, Lorenzo Rodriguez argues that the government violated

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196 (1963), by failing to

fully disclose reports and notes containing police and witness statements. Finally,



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Lorenzo Rodriguez argues that cumulative error deprived him of a fair trial. After

thoroughly reviewing the record, we affirm the district court.

                                         I.

      We review de novo the denial of a motion for judgment of acquittal viewing

the evidence in the light most favorable to the verdict. United States v. Thompson,

473 F.3d 1137, 1142 (11th Cir. 2006). In reviewing the sufficiency of the

evidence, “the issue is not whether a jury reasonably could have acquitted but

whether it reasonably could have found guilt beyond a reasonable doubt.” Id.

      “The Hobbs Act prohibits robbery or extortion, and attempts or conspiracies

to commit robbery or extortion, that in any way or degree obstruct, delay, or affect

commerce or the movement of any article or commodity in commerce.” United

States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001) (quotation omitted).

“Because the Hobbs Act, by its own terms, encompasses the inchoate offenses of

attempt and conspiracy, the interstate nexus required to prove a Hobbs Act

conspiracy may be established upon evidence that had the conspiratorial objective

been accomplished, interstate commerce would have been affected.” United States

v. Orisnord, 483 F.3d 1169, 1177 (11th Cir. 2007). Thus, to establish the requisite

interstate nexus for conspiracy to commit Hobbs Act robbery, the government

need only demonstrate a realistic probability of an effect on interstate commerce or

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some actual de minimis effect. United States v. Kaplan, 171 F.3d 1351, 1354

(11th Cir. 1999).

      Lorenzo Rodriguez argues the Government needed to prove that there was a

substantial relation to interstate commerce and not a minimal nexus. However, the

current law in this circuit is, and remains, that only a minimal nexus is required.

See, e.g., United States v. Taylor, 480 F.3d 1025, 1027 (11th Cir. 2007). Here,

Lorenzo Rodriguez and his codefendants planned and carried out an armed

robbery with the hope of stealing money and drugs. The Government’s case

included testimony that most drugs come from outside the United States.

Therefore, the district court properly denied Lorenzo Rodriguez’s motion for

judgment of acquittal on the two counts for conspiracy and attempt to commit

Hobbs Act robbery because a juror could conclude that there was a minimal nexus

to interstate commerce.

                                          II.

      Lorenzo Rodriguez challenges the pretrial identification in a photo array

and the testimony regarding that array as a violation of his due process rights. The

Government argues that Lorenzo Rodriguez waived his right to this challenge

because he did not file a motion to suppress as required by Federal Rule of




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Criminal Procedure 12(b)(3)(C) or seek a waiver under Federal Rule of Criminal

Procedure Rule 12(e).

      Rule 12(b)(3)(C) requires that a motion to suppress evidence be made

before trial or it is waived. See United States v. Nix, 438 F.3d 1284, 1288 (11th

Cir. 2006) (denying a challenge to a search warrant because challenge was not

preserved by a pretrial motion to suppress); United States v. Slocum, 708 F.2d 587,

600 (11th Cir. 1983) (denying a motion to suppress testimony when motion was

not raised pretrial). Under Rule 12(e) the court may grant a waiver for good cause.

      Here, the Defendant never filed a pretrial motion to suppress, nor did he

object during trial. Instead, he argues this issue for the first time on appeal,

without first seeking a waiver in the district court. Under Rule 12(b)(3)(C) he has

waived any challenge to the photo array. See Slocum, 708 F.2d at 600.

                                          III.

      We review the admission of prior crimes or bad acts under Federal Rule of

Evidence 404(b) for abuse of discretion. United States v. Ellisor, 522 F.3d 1255,

1267 (11th Cir. 2008). “A defendant must object at trial to preserve an objection

on appeal; the overruling of a motion in limine does not suffice.” United States v.

Khoury, 901 F.2d 948, 966 (11th Cir. 1990). Because Lorenzo Rodriguez did not

raise any objections to the evidence after the district court ruled on the in limine

                                           5
motion, we review this issue for plain error. We reverse for plain error when

“there is (1) error, (2) that is plain, (3) that affects the substantial rights, and even

then, only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Arias-Izquierdo, 449 F.3d

1168, 1185 n.8 (11th Cir. 2006).

      Rule 404 of the Federal Rules of Evidence prohibits the admission of “other

crimes, wrongs, or acts” if used “to prove the character of a person”; however, this

evidence may be admitted “for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.” To admit evidence under Rule 404(b), three conditions must be met:

(1) the evidence must be relevant to an issue other than the defendant’s character;

(2) the act must be established by sufficient proof to permit a jury finding that the

defendant committed the extrinsic act; and (3) the probative value of the evidence

must not be substantially outweighed by its undue prejudice and must meet the

other requirements of Rule 403. United States v. Matthews, 431 F.3d 1296,

1310–11 (11th Cir. 2005) (per curiam).

      The challenged evidence relates to intent. “A defendant who enters a not

guilty plea makes intent a material issue, imposing a substantial burden on the

government to prove intent; the government may meet this burden with qualifying

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404(b) evidence absent affirmative steps by the defendant to remove intent as an

issue.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995). To prove

intent the Government was permitted to submit evidence that Lorenzo Rodriguez

committed similar armed robberies to steal money and drugs with the same

codefendants. See United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir.

2001) (requiring that the prior act offered as evidence of intent involve the same

mental state as the charged offense).

      The second condition of admissibility can be established through the

uncorroborated word of an accomplice. Id. The Government properly relied on

Lorenzo Rodriguez’s accomplices to establish that he committed the previous

armed robberies. The Government also corroborated the testimony by providing

documentary evidence of the prior convictions.

      The third condition requires the district court to consider factors such as the

government’s need for evidence of intent, the similarity between the charged and

extrinsic offenses, and the time elapsed between the charged and extrinsic

offenses. Id. Rule 404(b) is a rule of inclusion, and evidence should not be

excluded where it is central to the prosecution’s case. United States v. Eckhardt,

466 F.3d 938, 946 (11th Cir. 2006). Here, the prior crimes happened in or about

2001, and less time has elapsed here than in other cases where we permitted

                                          7
inclusion of similar evidence. United States v. Lampley, 68 F.3d 1296, 1300 (11th

Cir. 1995) (including evidence where fifteen years elapsed). Furthermore, the

prior crimes were home-invasion robberies committed with the same codefedants.

The district court did not commit plain error by admitting the evidence, as it was

highly probative.

                                         IV.

      We review rulings about alleged discovery violations under Federal Rule of

Criminal Procedure 16 for an abuse of discretion. United States v. Hastamorir,

881 F.2d 1551, 1559 (11th Cir. 1989). We review a district court’s evidentiary

rulings, including witness testimony under Federal Rules of Evidence 701 and

702, for abuse of discretion. United States v. Hill, 643 F.3d 807, 840–41 (11th

Cir. 2011).

      Rule 16 provides the rules for disclosure and discovery in preparation for a

criminal trial. Federal Rule of Criminal Procedure 16(a)(1)(E) requires the

government, upon the defendant’s request, to produce physical evidence in its

possession, custody, or control that it intends to rely upon during its case-in-chief.

A party has a continuing duty to promptly disclose the existence of evidence that

must be produced upon discovery before or during trial. Fed. R. Crim. P. 16(c). A

district court may, upon a failure to comply, exclude any undisclosed evidence.

                                          8
Fed. R. Crim. P. 16(d)(2)(C). Late disclosure of Rule 16 evidence necessitates

reversal only if it violates a defendant’s substantial rights. United States v.

Bueno-Sierra, 99 F.3d 375, 380 (11th Cir. 1996) (per curiam). Substantial

prejudice occurs if a defendant is unduly surprised and lacks an adequate

opportunity to prepare a defense. Id.

      Roughly a month before trial the Government produced the cellular

telephone records. These records included all of the information that the Detective

testified about during trial. Because the defense had a month to prepare, the

district court did not abuse its discretion by admitting the evidence at trial.

      A witness is considered a lay witness if his or her testimony is in the form of

opinions “which are (a) rationally based on the perception of the witness, (b)

helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.” Fed. R. Evid. 701. We have

recognized that officers and employees can testify as lay witnesses “based upon

their particularized knowledge garnered from years of experience within the

field.” Hill, 643 F.3d at 841 (citation omitted).

      The Detective’s testimony was not based on scientific, technical, or other

specialized knowledge. He only reviewed the telephone records and the locations

                                           9
of the cellular towers for each relevant call. Based on his personal knowledge of

the location of cell towers, he testified as to the general locations of a

codefendant’s phone at particular times during the conspiracy. The district court

did not abuse its discretion by including the Detective’s testimony under Rule 701.

                                           V.

      We review de novo a district court’s determination as to whether a Brady

violation occurred. United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir. 1996)

(per curiam). Under Brady, a defendant’s due process rights are violated when the

prosecution suppresses material evidence favorable to the defendant, irrespective

of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S. Ct.

at 1196–97. To establish a Brady violation, the defendant must show that: (1) the

prosecution possesses evidence, including impeachment evidence; (2) the

defendant does not possess the evidence, nor could he obtain it himself with any

reasonable diligence; (3) the prosecution suppressed the favorable evidence; and

(4) had the evidence been disclosed to the defense, a reasonable probability exists

that the outcome of the proceedings would have been different. United States v.

Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (per curiam). In considering

whether the government’s nondisclosure of exculpatory information violated a

defendant’s due process rights, “the focus is not upon the fact of nondisclosure,

                                           10
but upon the impact of the nondisclosure on the jury’s verdict.” United States v.

Kopituk, 690 F.2d 1289, 1339 (11th Cir. 1982).

      The delayed disclosure of Brady evidence compels reversal only when the

defendant demonstrates prejudice. United States v. Beale, 921 F.2d 1412, 1426

(11th Cir. 1991). In the context of the government’s failure to disclose

impeachment evidence, a defendant is prejudiced where there is “a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A ‘reasonable probability’ is a probability

sufficient to undermine confidence in the outcome.” United States v. Bagley, 473

U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985). “The mere possibility that an item of

undisclosed information might have helped the defense, or might have affected the

outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”

United States v. Agurs, 427 U.S. 97, 109–10, 96 S. Ct. 2392, 2400 (1976).

      Here, Lorenzo Rodriguez alleges that the Government redacted potential

Brady materials in reports and notes of agents and witnesses, including (1)

identifications made of the robbers by the victims; (2) inconsistent statements and

charged and uncharged misconduct conducted by his codefendatns; and (3)

information about other people who were related to one of the codefendants and

had a role in the current robbery. However, Lorenzo Rodriguez has not provided

                                          11
specific examples of how this seriously prejudiced him at trial. Although Lorenzo

Rodriguez made several objections at trial based on alleged Brady violations, the

district court reviewed each argument and properly ruled that there was no Brady

violation. After reviewing the in camera material, we affirm the district court’s

holding.

                                         VI.

      Under the cumulative error doctrine, even if individual judicial errors would

not be sufficient to warrant reversal, the defendant may have been denied a fair

trial when the effect of all the errors is evaluated cumulatively. United States v.

Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009). “In addressing a claim of

cumulative error, we must examine the trial as a whole to determine whether the

appellant was afforded a fundamentally fair trial.” Id. (quotation omitted). Here,

the district court did not err; therefore, there was no cumulative error.

      AFFIRMED.




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