           Case: 19-10561   Date Filed: 01/09/2020   Page: 1 of 16


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10561
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:18-cr-20725-RNS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MISAEL RODRIGUEZ PEREZ,

                                                          Defendant-Appellant.

                       ________________________

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

                             (January 9, 2020)

Before MARTIN, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Misael Rodriguez Perez appeals his convictions for possession of 15 or more

unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and for

aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, he

argues that the district court erred in denying his motion to suppress evidence

obtained from a warrantless search of his truck because the search was neither a

search incident to arrest nor voluntary. Second, he argues that the district court

abused its discretion in failing to apply a standard of manifest necessity before

allowing the government to introduce the testimony of a late-disclosed witness.

For the reasons that follow, we affirm on both issues.

                                I. BACKGROUND

      On October 27, 2016, Detectives Yunieski Arriola and Brandon Ashe, of the

Miami-Dade Police Department, while patrolling in an unmarked car, noticed ten

trucks, many of which had fuel bladders in their beds, fueling up at a gas station.

Because they knew that fuel bladders were illegal in Florida, they entered the gas

station. As they did so, they noticed that one of the men fueling his truck, later

identified as Yuniet Fuentes, had a firearm in his pocket.

      The detectives parked their car and turned on their lights to alert the men to

their presence and to avoid a confrontation. Six of the trucks immediately fled.

The detectives detained and handcuffed the four men who remained at the gas

station—Fuentes, Yenier Martell Rodriguez, Yunier Rodriguez Rivero, and


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Rodriguez Perez. Before being detained, Fuentes tossed a small brown bag into a

grassy area. The officers recovered it; it contained gift cards. Because none of the

men spoke English, Detective Arriola asked each of the men, in Spanish, if they

consented to searches of their trucks, but he did not mention that they had the right

to decline the search. All four men responded affirmatively in Spanish.

      The detectives then conducted searches of the trucks. In Rodriguez Perez’s

truck, Detective Arriola found 16 gift cards. At this point, he called Detective

Alberto Roque, who worked in the police department’s economic crime bureau.

Roque advised Arriola that he was working on a case involving the detainees and

requested that the detectives seize the gift cards and release the men so as to not

alert them to the nature of his investigation.

      As he explained it at the subsequent suppression hearing, Roque’s

investigation involved the use of stolen credit cards to illegally purchase fuel,

which was then resold for profit. The conspirators would obtain credit card

information—either by ordering credit cards off of the “black web” or by

skimming credit card numbers off gas pumps and making their own credit cards

with the stolen information—and then purchase gas. They outfitted their trucks

with both legal and illegal gas bladders, some of which could hold up to 1,000

gallons of fuel, and purchased fuel using the stolen credit card information. Then

they sold the stolen fuel to third-party buyers.


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      Rodriguez Perez was indicted nearly two years later, on September 6, 2018,

with one count of possession of fifteen or more unauthorized access devices, in

violation of 18 U.S.C. § 1029(a)(3), and with three counts of aggravated identity

theft, in violation of 18 U.S.C. § 1028A(a)(1). The government sought to use the

fruits of the October 27, 2016, search of Rodriguez Perez’s vehicle, to which he

objected by filing a motion to suppress. Accordingly, the district court conducted a

suppression hearing. The district court ultimately denied Rodriguez Perez’s

motion to suppress, concluding that the government had the authority to conduct

the search because it had probable cause, because it was a search incident to arrest,

or because Rodriguez Perez consented to the search.

      The case proceeded to trial, with jury selection scheduled for November 13,

2018, and opening arguments scheduled for November 14, 2018. Both sides filed

witness lists on November 9, 2018, pursuant to the district court’s directive. On

November 13, after jury selection had been completed, the government filed an

amended witness list, which included Yunier Rodriguez Rivero, who had been

detained along with Rodriguez Perez at the gas station. The government had

received a call on the night of November 13 from Rodriguez Rivero’s counsel

advising the government that their client would be willing to testify. The

government immediately informed Rodriguez Perez’s counsel.




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      The next morning, prior to opening statements, the district court heard

argument on Rodriguez Perez’s motion to exclude the testimony because of the

government’s late disclosure. The government stated the circumstances of the late

disclosure, and stated that it anticipated that the testimony would establish that

Rodriguez Rivero knew Rodriguez Perez and that they were involved in a scheme

of using fraudulent credit card numbers to purchase fuel and then resell it.

Rodriguez Perez argued that the late disclosure of a cooperating witness severely

prejudiced him because he was unsure of what Rodriguez Rivero’s testimony

would be and that it had changed the landscape of the trial. The district court

reserved ruling on the motion and invited Rodriguez Perez to raise the issue again

if the government actually called Rodriguez Rivero as a witness.

      During trial, the government informed the district court that it intended to

call Rodriguez Rivero, who would testify that he was involved in a criminal

scheme with Rodriguez Perez to use stolen credit card information to illegally

purchase fuel that they would then resell to a buyer. Rodriguez Perez again

objected to his testimony, arguing that the new testimony morphed the case from

one dependent on “very circumstantial evidence” to one with a direct witness—in

other words, it changed the nature of the case that the jury had been empaneled for.

Although the district court acknowledged that Rodriguez Rivero’s testimony

“eviscerated” Rodriguez Perez’s “entire strategy,” it ultimately allowed him to


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testify—but only if he “testif[ied] about everything” and waived his Fifth

Amendment rights.

      Rodriguez Rivero ended up testifying as the government indicated he

would—that he was involved in a conspiracy with Rodriguez Perez to illegally

purchase and then resell fuel for profit. He testified that on October 27, 2016, the

police approached and detained him and three of his co-conspirators, including

Rodriguez Perez. He said that one of the officers asked him in Spanish if he could

search his vehicle and though he wasn’t sure if the officer asked the other men the

same, he saw the officer approach and speak to the other men in Spanish. On

cross-examination, he was asked about two subsequent arrests in March 2017 and

August 2018 on similar charges. Following the testimony, Rodriguez Perez moved

to strike Rodriguez Rivero’s testimony, but the district court denied the motion.

The jury ultimately returned a guilty verdict on all counts. Rodriguez Perez moved

for a new trial and renewed his motion for a mistrial, citing the late introduction of

Rodriguez Rivero. At the sentencing hearing, the district court entertained

arguments for a new trial, ultimately rejecting them and sentencing Rodriguez

Perez to a 27-month term of imprisonment followed by 3 years of supervised

release. Rodriguez Perez timely appealed to us.




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                        II. LEGALITY OF THE SEARCH

      First, Perez argues that the district court erred in denying his motion to

suppress the evidence found in his truck. The Fourth Amendment provides that

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated.” U.S. Const.

amend. IV. In most circumstances, police officers must obtain a warrant supported

by probable cause to justify a search under the Fourth Amendment. United States

v. Magluta, 418 F.3d 1166, 1182 (11th Cir. 2005). “[T]he basic rule [is] that

searches conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment—subject only to

a few specifically established and well-delineated exceptions.” Arizona v. Gant,

556 U.S. 332, 338 (2009) (quotation marks omitted). Evidence that derives from

an unlawful search is barred from use at trial as fruit of the illegality. Wong Sun v.

United States, 371 U.S. 471, 485 (1963).

      “One of the well-established exceptions to the probable cause and warrant

requirements is a search which is conducted pursuant to voluntary consent.”

United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989). “Voluntariness is not

susceptible to neat talismanic definitions; rather, the inquiry must be conducted on

a case-by-case analysis that is based on the totality of the circumstances.” Spivey,

861 F.3d at 1212 (quotation marks omitted). Generally speaking, “[i]n order for

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consent to a search to be deemed voluntary, it must be the product of an essentially

free and unconstrained choice.” Garcia, 890 F.2d at 360. In making the

determination that the consent was voluntary, we must analyze the facts and

balance the suspect’s right to be free from coercive treatment with the needs of the

government to conduct legal searches. Id. We have stated that the following are

relevant, non-dispositive factors in determining voluntariness:

      voluntariness of the defendant’s custodial status, the presence of
      coercive police procedure, the extent and level of the defendant’s
      cooperation with police, the defendant’s awareness of his right to refuse
      to consent to the search, the defendant’s education and intelligence,
      and, significantly, the defendant’s belief that no incriminating evidence
      will be found.

Chemaly, 741 F.2d at 1352. “While knowledge of the right to refuse consent is

one factor to be taken into account, the government need not establish such

knowledge as the sine qua non of an effective consent.” Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973). Thus, the government is not required to

prove that the suspect was aware of the right to refuse to consent. Chemaly, 741

F.2d at 1353.

      We review a district court’s ruling on a motion to suppress under a mixed

standard, reviewing the district court’s findings of fact for clear error and its

application of the law to those facts de novo. United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). “[W]hen considering a ruling on a motion to

suppress, all facts are construed in the light most favorable to the prevailing party
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below.” Id. When reviewing the district court’s decision, we may consider any

evidence presented at trial and are not limited to the evidence introduced at the

suppression hearing. United States v. Villabona-Garnica, 63 F.3d 1051, 1056

(11th Cir. 1995). Additionally, we review the district court’s determination that a

defendant’s consent to a search was voluntary for clear error. United States v.

Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984), opinion reinstated on reh’g sub

nom. United States v. Bacca-Beltran, 764 F.2d 747 (11th Cir. 1985). We “will

accord the district judge a great deal of deference regarding a finding of

voluntariness, and we will disturb the ruling only if we are left with the definite

and firm conviction that the trial judge erred.” United States v. Spivey, 861 F.3d

1207, 1212 (11th Cir. 2017), cert. denied, 138 S. Ct. 2620, 201 (2018) (quotation

marks omitted).

      The district court did not err in finding the search lawful under the Fourth

Amendment. We conclude that its determination that Rodriguez Perez consented

to the search is supported by the record and does not constitute clear error. We

need not reach the district court’s conclusion that the search was permissible

because the police had probable cause or because it was a search incident to arrest.

See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1059 (11th Cir. 2007)

(“[W]e may . . affirm a district court’s decision to grant or deny a motion for any

reason[.]”).


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      Construing all facts in the light most favorable to the party prevailing below,

we conclude that the district court could have reasonably concluded that Rodriguez

Perez consented to the search. First, Detective Arriola’s testimony that he sought,

and received permission from, Rodriguez Perez while he was detained was not

contradicted at the suppression hearing or at trial. Second, we reject Rodriguez

Perez’s argument that his consent was not voluntary based on a totality of the

circumstances. Here, we find two of our past cases—Espinosa-Orlando and

Garcia—instructive.

      In United States v. Espinosa-Orlando, four law enforcement agents

conducted a traffic stop of Espinosa and his brother, and with weapons drawn,

asked them to exit the vehicle, patted them down for weapons, and instructed them

to lie on the grass. 704 F.2d 507, 510 (11th Cir. 1983). One of the agents asked

Espinosa in a conversational tone, while he was still lying on the grass, whether he

gave permission to search the vehicle, which he did. Id. at 510. While Espinosa

was asked for permission to search, three of the agents had reholstered their

weapons and the fourth had his weapon pointed at the ground. Id. at 513. We

determined that the district court correctly found that the consent was voluntary,

noting that “no abusive language or physical threats were at any time directed at

Espinosa, who had not been handcuffed, placed within a police vehicle, or

transported away from the location of the stop.” Id.


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      Similarly, in United States v. Garcia, agents arrested Garcia in his front yard

with 14 agents present. 890 F.2d at 360. After being searched for weapons, Garcia

led the agent who performed the arrest and the search into his home to show him

where his weapons were located. Id. Garcia was placed on the couch in his living

room, read his Miranda1 rights in Spanish, and asked for his consent to search in

Spanish. Id. at 360-61. Garcia consented to a limited search only, but the agents

refused the limited consent, requested his consent to search the entire home, and

stated that, if he did not consent, they would secure the house and apply for a

search warrant. Id. at 361. Garcia then told the agents to go ahead and search the

house. Id. The district court found that Garcia’s consent could not have been

voluntary, but we reversed. Id. We pointed to cases that presented much more

coercive encounters between law enforcement and defendants, like

Espinosa-Orlando. Id. We recognized that the number of agents involved was

greater than that in Espinosa-Orlando and that Espinosa had not been handcuffed

like Garcia, and we conceded that these “factors indicate[d] that Garcia was under

some pressure to comply with the agents’ request.” Id. at 362. However, we

concluded that there was no evidence that the “officers employed any tactics that

would augment the degree of coercion that is inherent in any arrest,” and

considering the totality of the circumstances, the consent was voluntary. Id.


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
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      Here, based on the totality of the circumstances, we conclude that Rodriguez

Perez’s consent to the search was voluntary. At the time that Detective Arriola

asked for permission to search the truck, there is no clear evidence that either he or

Detective Ashe had drawn their weapons. There is also no evidence that either

officer threatened any of the men or attempted to coerce them. While we

acknowledge that the context of the search was somewhat pressured—the men

were detained at a gas station, placed in handcuffs, and apparently did not speak

English—we cannot conclude, based on our past precedent in Espinosa-Orlando

and Garcia, that Rodriguez Perez’s consent was involuntary. Accordingly, we

conclude that the district court did not err in finding the search lawful under the

Fourth Amendment and affirm as to this ground.

                  III. RODRIGUEZ RIVERO’S TESTIMONY

      Next, Rodriguez Perez argues that the district court erred in allowing the

government to introduce the testimony of a critical cooperating witness who was

disclosed the night before opening arguments were scheduled to commence

without a showing of manifest necessity by the government. We note at the outset

that Rodriguez Perez’s specific argument here is not overwhelmingly clear. He

does not appear to argue that the district court erred in denying his motions for a

mistrial or a new trial, thereby abandoning those arguments. United States v.

Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). He also does not properly


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address his argument that the government violated his rights to a fair trial, effective

assistance of counsel, confrontation through cross examination, and due process of

law, leading us to conclude that those arguments are abandoned, as well. See id.

Moreover, Rodriguez Perez clarifies that he is not challenging the government’s

failure to provide a witness list or use of an undisclosed witness at trial. The only

argument that we are able to clearly discern is that the district court should have

applied a “manifest necessity” requirement to the government’s attempt to

introduce a late-disclosed witness.

      The “manifest necessity” requirement is derived from the Supreme Court’s

caselaw concerning the intersection of mistrials and the Double Jeopardy Clause.

Generally, retrials following mistrials do not violate the Double Jeopardy Clause

so long as the grant of a mistrial is because of “manifest necessity.” Richardson v.

United States, 468 U.S. 317, 323–24 (1984). Under this standard, “district courts

are permitted to declare a mistrial and discharge a jury only where, taking all the

circumstances into consideration, there is a manifest necessity for the act, or the

ends of public justice would otherwise be defeated.” United States v. Therve, 764

F.3d 1293, 1298 (11th Cir. 2014).

      We decline Rodriguez Perez’s invitation to apply the “manifest necessity”

standard in a context like his—in which the government belatedly attempts to

introduce the testimony of a cooperating witness. We conceptualize Rodriguez


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Perez’s argument as essentially arguing that the district court made an incorrect

evidentiary ruling, which we review for abuse of discretion. United States v.

Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007). Given that we have never

applied the “manifest necessity” standard outside of the Double Jeopardy Clause–

mistrial context, we do not believe that the district court abused its discretion by

failing to apply it here.

       But even if we read Rodriguez Perez’s argument as implying that his

substantial rights were violated, we would nonetheless affirm the district court’s

decision. “Late disclosure of evidence required to be turned over under [Federal

Rule of Criminal Procedure] 16 or a standing discovery order necessitates reversal

only if it violates a defendant’s substantial rights.” United States v. Bueno-Sierra,

99 F.3d 375, 380 (11th Cir. 1996). “Substantial prejudice is established when the

defendant shows that he was unduly surprised and did not have an adequate

opportunity to prepare a defense or that the mistake had a substantial influence on

the jury.” United States v. Rivera, 944 F.2d 1563, 1566 (11th Cir. 1991). We have

previously determined that a defendant established substantial prejudice where the

testimony of the late-disclosed witness “shattered” his defense. United States v.

Camargo-Vergara, 57 F.3d 993, 998–99 (11th Cir. 1995). However, we have

concluded that there is no substantial prejudice when the defendant should have

known that a late disclosed statement existed and there was substantial other


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evidence linking the defendant to the offense. United States v. Rivera, 944 F.2d

1563, 1566–67 (11th Cir. 1991). We review the district court’s evidentiary

decisions for abuse of discretion. Perez-Oliveros, 479 F.3d at 783.

      In this light, we cannot conclude that the district court abused its discretion.

While we have no doubt that the late introduction of Rodriguez Rivero’s testimony

adversely affected Rodriguez Perez’s defense, we do not believe that it “shattered”

his defense. Instead, we find it plausible that Rodriguez Perez should have known

that Rodriguez Rivero—or one of the other two men who was detained at the same

time that they both were—might testify against him. All four men were engaged in

the same criminal actions, were all detained at the same time by Officers Arriola

and Ashe, and all had evidence connecting them to the crime. Moreover, the

government informed the district court that it disclosed to Rodriguez Perez’s

counsel in September 2018 the information it had related to Rodriguez Rivero,

including the fact that he had been indicted along with Rodriguez Perez. In other

words, Rodriguez Perez either knew or should have known that substantial other

evidence was lurking in the ether.

      Accordingly, we affirm as to this issue. Rodriguez Perez cannot

demonstrate that the district court’s failure to apply the “manifest necessity”

standard constituted abuse of discretion. And even if we address the potentially

abandoned argument that Rodriguez Perez suffered substantial prejudice because


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of Rodriguez Rivero’s late testimony, we similarly do not think that the district

court abused its discretion.

      AFFIRMED.




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