          Case: 18-14820   Date Filed: 09/13/2019   Page: 1 of 20


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-14820
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:17-cr-00129-BJD-JBT-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JOSE CALDERON-FUENTES,

                                                        Defendant-Appellant.

                      ________________________

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

                           (September 13, 2019)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jose Calderon-Fuentes (“Calderon”) appeals his conviction for theft of

government property, challenging the district court’s denial of his motion to

suppress evidence and motion for a judgment of acquittal. He argues that (1) the

district judge should have reheard the testimony regarding his motion to suppress

anew; (2) the district court erred in denying his motion to suppress because his

consent was coerced and unwilling; (3) the district court denied him the right to

present a complete defense by excluding as demonstrative evidence low vision

simulators that were relevant, not prejudicial, and would have aided the jury in

understanding the physical principles involved in having low vision; and (4) the

evidence was insufficient to sustain the jury’s verdict.

                                         I.

      The district judge’s decision not to hold an evidentiary hearing is reviewed

for abuse of discretion. United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir.

2006). We afford great deference to the district court’s credibility determinations.

United States v. Clay, 376 F.3d 1296, 1302 (11th Cir. 2004).

      Under the Federal Magistrate’s Act, a district judge may designate a

magistrate judge to conduct a suppression hearing, but must make a de novo

determination as to those portions of the magistrate judge’s report and

recommendation (“R&R”) to which objection is made. 28 U.S.C. § 636(b)(1).

While the Act requires a de novo determination, it does not require a de novo


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hearing. United States v. Raddatz, 447 U.S. 667, 674 (1980). In making such

determination, the district judge may rely on the magistrate judge’s proposed

findings and recommendations to whatever extent it chooses in the exercise of its

sound judicial discretion. Id. at 676. The district court “may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1). However, we recognized in United

States v. Cofield that, generally, a district judge must rehear disputed testimony

before rejecting a magistrate judge’s credibility determinations. 272 F.3d 1303,

1306 (11th Cir. 2001).

      Here, the district judge did not abuse his discretion in not conducting a de

novo evidentiary hearing for the disputed testimony. See Arbolaez, 450 F.3d at

1293. The district judge made a de novo determination as to the disputed

testimony, relying on the R&R’s findings and recommendations, which was

sufficient. See 28 U.S.C. § 636(b)(1); Raddatz, 447 U.S. at 674, 676. The district

judge did not reject any portion of the magistrate judge’s credibility determinations

or factual findings, and, therefore, no rehearing was required. See Cofield, 272

F.3d at 1306.



                                         II.




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      In reviewing a district court’s suppression ruling, we examine factual

findings for clear error and review the court’s legal conclusions de novo. See

United States v. Hollis, 780 F.3d 1064, 1068 (11th Cir. 2015). We review the

entire record in the light most favorable to the party prevailing below. Id.

      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. Evidence seized during an

unlawful search cannot be used against the victim of the search. Wong Sun v.

United States, 371 U.S. 471, 485 (1963). This exclusionary rule bars physical,

tangible materials obtained as a result of an unlawful invasion as well as

“testimony as to matters observed during an unlawful invasion.” Id.

      A home’s curtilage is entitled to the same Fourth Amendment protections as

the home. Oliver v. United States, 466 U.S. 170, 180 (1984). “Curtilage” is an

area immediately adjacent to the home that an individual reasonably expects will

remain private. Id.

      The Fourth Amendment is not implicated by a police officer’s entry onto

private land “to knock on a citizen’s door for legitimate police purposes

unconnected with a search of the premises.” United States v. Taylor, 458 F.3d

1201, 1204 (11th Cir. 2006). Unless the person in possession of the home

expressly orders otherwise, “an officer may walk up the steps and knock on the


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front door of any man’s [home] with the honest intent of asking questions of the

occupant thereof.” Id. (quotation marks omitted). Thus, police may knock on a

person’s door “or otherwise approach the residence to speak to the inhabitants”

like any private citizen could. Id. Further, the person who opens the door has no

obligation to do so. Kentucky v. King, 563 U.S. 452, 469-70 (2011). “And even if

an occupant chooses to open the door and speak with the officers, the occupant

need not allow the officers to enter the premises and may refuse to answer any

questions at any time.” Id. at 470.

      In Taylor, we rejected the argument that officers violated the Fourth

Amendment by opening a closed gate on Taylor’s property without a warrant,

entering the property, proceeding down the driveway, and knocking on the front

door. Taylor, 458 F.3d at 1204. We held that the officers’ initial entry onto

Taylor’s property was for a lawful “knock and talk,” which is an exception to the

Fourth Amendment’s warrant requirement. Id. at 1204-05.

      Another exception to the warrant requirement is where the defendant

voluntarily consented to the search. Illinois v. Rodriguez, 497 U.S. 177, 181

(1990). Generally, for consent to a search to be deemed voluntary, it must be the

product of an essentially free and unconstrained choice. United States v. Garcia,

890 F.2d 355, 360 (11th Cir. 1989). “The government bears the burden of proving




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the voluntariness of the consent.” United States v. Chemaly, 741 F.2d 1346, 1352

(11th Cir. 1984).

      Whether a defendant’s consent was voluntary depends on the totality of the

circumstances. United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001).

We must scrutinize the facts and strike a balance between the defendant’s “right to

be free from coercive conduct and the legitimate need of the government to

conduct lawful searches.” Garcia, 890 F.2d at 360.

      Relevant factors in determining voluntariness, none of which is
      dispositive, include 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 the government is not required to prove that

[the defendant] knew he had the right to refuse to consent, such knowledge or lack

thereof is a factor to consider in determining voluntariness.” Id. at 1353.

      “The Fourth Amendment allows some police deception so long as the

suspect’s will was not overborne.” United States v. Spivey, 861 F.3d 1207, 1214

(11th Cir. 2017), cert denied, 138 S. Ct. 2620 (2018). Generally, police officer

deception about the nature and purpose of their investigation, even if they

deliberately lie, will not invalidate consent, as “the only relevant state of mind for

voluntariness is that of the suspect himself.” Id. at 1215 (quotation marks and


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alteration omitted). However, law enforcement may not “lie about the existence of

exigent circumstances” or a warrant, as such lie would suggest that “the occupant

has no right to resist and may face immediate danger if he tries.” Id. at 1213.

       In Spivey, we held that a credit card fraud suspect’s consent to the search of

his residence was voluntary, even though law enforcement officers pretended to be

following up on a burglary and misrepresented that a federal agent was a crime

scene technician. Id. at 1210-11. We held that, considering the totality of the

circumstances, all factors other than deceit pointed in favor of voluntariness. Id. at

1215. We noted that the officers’ ruse did not prevent the defendant from making

a voluntary decision, and the officers “did not claim any authority that they

lacked.” Id. at 1216.

       We specifically rejected reliance on the statement that “intimidation and

deceit are not the norms of volunteerism,” which was dictum in Alexander v.

United States, 390 F.2d 101, 110 (5th Cir. 1986), outside of the context of a ruse

following an illegal arrest. Id. at 1217 (quotation marks and alteration omitted).

We also noted that we had “never applied [Tweel1] outside the administrative

context . . .[which] makes sense in light of the rule that police officers are




       1
          In United States v. Tweel, our predecessor court held that consent was involuntary
where it was induced by an official misrepresentation that suggested the investigation was only
civil, not criminal. 550 F.2d 297, 299 (5th Cir. 1977).

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permitted to obtain a confession through deception under the Fifth Amendment.”

Id. at 1213.

      A defendant can establish that his consent was involuntary if he establishes

both that (1) he was particularly vulnerable — mentally or physically — to police

coercion; and (2) the police actually employed a substantial element of coercive

conduct to obtain consent, either by force or “more subtle forms of psychological

persuasion.” See Colorado v. Connelly, 479 U.S. 157, 164 (1996).

      The Supreme Court has held that a defendant’s consent was involuntary due

to his particular vulnerability where the defendant was interrogated for four hours

while incapacitated and sedated in an intensive care unit. Mincey v. Arizona, 437

U.S. 385, 385-86 (1978). It also held that a defendant’s consent was involuntary

where he was on medication and interrogated for over 18 hours without food or

sleep. Greenwald v. Wisconsin, 390 U.S. 519, 519-20 (1968).

      To the extent that Calderon argues that the agents violated the Fourth

Amendment by walking through a closed gate and onto his property, the evidence

and law refute this claim. First, although he maintains that the gate was closed,

sufficient evidence was presented at the suppression hearing that the gate was open

on both visits, including the testimony of both agents. Thus, the district court did

not clearly err in finding that the gate was open. See Hollis, 780 F.3d at 1068.




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Second, the agents’ actions of walking through the open gate to where Calderon

was working in his yard during the second visit amounted to a lawful knock and

talk and did not implicate the Fourth Amendment. See Taylor, 458 F.3d at 1204-

05. The agents called to Calderon as they were walking through the gate onto his

property, and asked if he would speak with them, and he agreed. Calderon could

have asked the agents to leave and/or refused to speak with them. See Kentucky,

563 U.S. at 470. Further, it is worth noting that, even if the gate was closed, the

agents did not commit a Fourth Amendment violation by opening it and walking

into the yard where Calderon was in order to speak with him. See Taylor,

458 F.3d at 1204. This Court rejected a very similar argument in Taylor. See id.

      With respect to the first Chemaly factor, the totality of the circumstances

demonstrates that Calderon’s consent was voluntarily given. He was not in

custody during either interview with the agents. Chemaly, 741 F.2d at 1352. The

conversation was casual during both interviews, he was never placed in handcuffs,

and the agents never raised their voices.

      Turning to the second Chemaly factor, the police procedure used in each

interview was not coercive. Although the agents were deceptive in their first

interview about who they were and why they wanted to speak with Calderon, they

did not claim to have any authority to compel him to speak with them such as

exigent circumstances or a warrant. Spivey, 861 F.3d at 1213-14. This case is like


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Spivey, where law enforcement agents pretended to be following up on a burglary

and misrepresented that a federal agent was a crime scene technician, because the

agents here initially represented themselves to be Homeland Security

Investigations agents interested in talking to Calderon about his international

travels. See Spivey, 861 F.3d at 1210-11.

      Third, Calderon cooperated with the police during both interviews, including

the December 2012 interview during which the agents told him that they were

investigating him regarding his VA benefits. Chemaly, 741 F.2d at 1352.

Calderon freely chose to speak with the agents and invited them onto his screened-

in porch to discuss the matter during the December 2012 interview.

      Fourth, as to Calderon’s awareness of his right to refuse consent to search,

although he was not told by the agents during the first interview that he had such a

right, they told him that his participation in the second interview was voluntary and

that he could stop the interview at any time. Fifth, Calderon appeared to be

sufficiently intelligent to consent, as the magistrate judge found, given his work as

an aircraft mechanic in the Navy for 21 years.

      Thus, the first five Chemaly factors weigh in favor of voluntariness. See

Chemaly, 741 F.2d at 1352. Sixth, as the magistrate judge found, it is unclear

whether Calderon believed that no incriminating evidence would be found during

the June 2012 interview, as he did not know the real reason for the agents’ visit.


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However, this is substantially outweighed by the other Chemaly factors. Chemaly,

741 F.2d at 1352. The district court did not clearly err in making any of the factual

findings discussed above, and it correctly concluded, based on those facts, that

Calderon voluntarily consented to the agent interviewing him at his home. See

Hollis, 780 F.3d at 1068.

      Finally, Calderon’s eye disease did not make him more vulnerable in the

context of a voluntariness analysis. See Connelly, 479 U.S. at 164. Although he

may not have been able to see well, he could see well enough to drive and work on

his boat. Further, even if he was effectively blind (which he has not shown), his

eye disease did not come close to rising to the level of the defendants’

vulnerabilities in Mincey or Greenwald, as he was not incapacitated, sedated by

medication, confined to a hospital bed, deprived of food or water, or interrogated

for hours during either visit with the agents. See Mincey, 437 U.S. at 385-86;

Greenwald, 390 U.S. at 519-20. The agents also did not take any action that

overbore Calderon’s will. See Spivey, 861 F.3d at 1214. The interaction between

Calderon and the agents was cordial throughout both interviews.

      Accordingly, evaluating the totality of the circumstances, Calderon

voluntarily consented to the agents’ interviews in both June and December 2012

and the district court did not err in so determining.




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                                               III.

      We review the district court’s evidentiary rulings at trial for abuse of

discretion. United States v. Hough, 803 F.3d 1181, 1193 (11th Cir. 2015). Even

when an evidentiary ruling was erroneous, we will not reverse a conviction if such

error was harmless. United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.

2005). An error is harmless where it does not have “a substantial influence on the

outcome of the case” or leave “grave doubt as to whether [it] affected the

outcome.” Id.

      We recognize a “significant range of choice for the district court on

evidentiary issues” and give the district court’s evidentiary rulings “considerable

deference.” United States v. Brown, 415 F.3d 1257, 1265 (11th Cir. 2005).

Generally, “the district court has wide discretion to admit evidence of experiments

conducted under substantially similar conditions.” Barnes v. Gen. Motors Corp.,

547 F.2d 275, 277 (5th Cir. 1977). The burden is on the party offering a

demonstrative exhibit to show that it is “the same in substantial particulars as to

afford a fair comparison in respect to the particular issue to which the test is

directed.” Id.

      A demonstrative exhibit, like any evidence, should be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” Fed. R. Evid. 403. A defendant’s


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right to present a defense is tempered by Rule 403 and subject to the restrictions in

Rule 401. See United States v. Anderson, 872 F.2d 1508, 1519 (11th Cir. 1989);

see also Fed. R. Evid. 401.

      Here, the district court did not abuse its discretion in finding that the

simulators were inadmissible. The court reasonably concluded that the simulators

were not relevant to a material issue in the case because the conditions they

purported to simulate were untested, and such conditions did not specifically

replicate those experienced by someone with granular corneal dystrophy. Finally,

even if the court had abused its discretion, any error would be harmless, because

the jury’s use of the simulators would not have substantially affected the outcome

of the case. See Henderson, 409 F.3d at 1300.

                                           IV.

      We review a challenge to the sufficiency of the evidence de novo,

considering “the evidence in the light most favorable to the government and

draw[ing] all reasonable inferences in favor of the jury’s verdict.” United States v.

Wilson, 788 F.3d 1298, 1308 (11th Cir. 2015). We consider all evidence produced

at trial against the defendant in evaluating his claim of insufficient evidence.

United States v. Thomas, 8 F.3d 1552, 1558 n.12 (11th Cir. 1993).

      The relevant question in determining whether the evidence was sufficient is

whether any rational factfinder could have found the essential elements of the


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crime beyond a reasonable doubt. United States v. Hernandez, 433 F.3d 1328,

1335 (11th Cir. 2005). We are bound by the jury’s “rejection of the inferences

raised by the defendant.” Id. at 1334-35. Where a statement by the defendant is

disbelieved by the jury, it may be considered as substantive evidence of the

defendant’s guilt. United States v. Hughes, 840 F.3d 1368, 1385 (11th Cir. 2016),

cert. denied, 137 S. Ct. 1354 (2017). “And this principle applies equally to false

exculpatory statements made pre-trial” and those made on the stand. Id.

      In deciding whether the evidence was sufficient, we do not distinguish

between circumstantial and direct evidence. United States v. Tate, 586 F.3d 936,

945 (11th Cir. 2009). Circumstantial evidence is frequently more than sufficient to

establish guilt beyond a reasonable doubt. United States v. Henderson, 693 F.2d

1028, 1030 (11th Cir. 1982). If the government seeks to meet its burden of proof

using circumstantial evidence, it must rely on reasonable inferences to establish a

prima facie case. United States v. Mieres-Borges, 919 F.2d 652, 657 (11th Cir.

1990).

      A person who steals or “knowingly converts to his use or the use of another”

any money “of the United States or of any department or agency thereof,” violates

18 U.S.C. § 641. See 18 U.S.C. § 641. A violation of § 641 is shown with proof

that (1) the money belonged to the United States, (2) the defendant stole the money

for his use or the use of someone else, and (3) the defendant knowingly and


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willfully intended to deprive the United States of the money. Wilson, 788 F.3d at

1309.

        “In this Circuit, to establish the requisite criminal intent, the government

need only prove that defendant knowingly used government property for his own

purpose in a manner that deprived the government of the use of that property.” Id.

(quotation marks and alterations omitted). “The defendant must know that his

taking of property is an unlawful conversion.” Id. “Knowing conversion” requires

that the defendant had knowledge of the facts, though not necessarily the law, that

made the taking a conversion. Id.

        For the government to show that a defendant’s illegal action was willful, it

must present evidence proving that the defendant acted with knowledge that his

conduct was unlawful. Bryan v. United States, 524 U.S. 184, 191-92 (1998).

Generally, “when used in the criminal context, a ‘willful’ act is one undertaken

with a ‘bad purpose.’” Id. at 191.

        Here, the circumstantial evidence presented at trial was sufficient for a

reasonable jury to conclude, beyond a reasonable doubt, that Calderon knowingly

and willfully stole government property. Calderon admitted that, since 2008 when

he went to renew his Florida driver’s license, he knew that he was receiving more

money from the Department of Veterans Affairs (“VA”) than he should have been.

The videos of Calderon driving his truck coupled with his multiple express


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statements to agents and VA technicians that he did not drive due to his eye

condition, demonstrates his dishonesty regarding his sight ability. A reasonable

jury could find that Calderon had lied to the VA and that his untruthfulness was

evidence of willfulness. See Hughes, 840 F.3d at 1385. Accordingly, we affirm

Calderon’s conviction and the denial of his motions.

      AFFIRMED.




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MARTIN, Circuit Judge, dissenting:

      In denying relief to Mr. Calderon-Fuentes on his claim that his Fourth

Amendment rights were violated by officers who were investigating him, the

Majority Opinion relies on this court’s ruling in United States v. Spivey, 861 F.3d

1207, 1214 (11th Cir. 2017). I dissented in Spivey, see id. at 1218–24 (Martin, J.,

dissenting), and continue to believe it was wrongly decided.

      Our Constitution’s Fourth Amendment protects people from having

government agents come into their homes without a warrant. Payton v. New York,

445 U.S. 573, 586, 100 S. Ct. 1371 (1980). There is an exception to this Fourth

Amendment protection where a person voluntarily gives consent for the officer to

search. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 2797 (1990).

Here the government argues that Mr. Calderon-Fuentes voluntarily consented to

the entry of law enforcement agents into his home, as well as to their questioning

of him. However, Gary Chwast, a Homeland Security Investigator, and Chuck

Arbogast, an investigator with the Veterans Administration, came to Mr. Calderon-

Fuentes’s home pretending they were both Homeland Security Investigators. They

told Mr. Calderon-Fuentes they were there for national security reasons to inquire

about his foreign national contacts. This was not true. The Officers were there to

investigate information that Mr. Calderon-Fuentes was fraudulently receiving

benefits for his blindness.


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       Prior to Spivey, our Circuit precedent said that searches are not generally

reasonable where agents induce consent by “deceit, trickery or misrepresentation.”

United States v. Tweel, 559 F.2d 297, 299 (5th Cir. 1977). A later case applying

Tweel explained, “[w]hen a government agent presents himself to a private

individual, and seeks that individual’s cooperation based on his status as a

government agent, the individual should be able to rely on the agent’s

representations.” SEC v. ESM Gov’t Ser., Inc., 645 F.2d 310, 316 (5th Cir. Unit B

May 18, 1981). Our predecessor court deemed it “clearly improper for a

government agent to gain access to records which would otherwise be unavailable

to him by invoking the private individual’s trust in his government, only to betray

his trust.” Id.

       The Majority Opinion here, like the Majority in Spivey, attempts to get out

from under Tweel by saying our Circuit had “never applied Tweel outside the

administrative context.” Yet ESM interpreted Tweel’s rule as applying to

“government agents,” not just agents working in the administrative context. See

id. The key to Tweel’s holding was that a government agent may not secure

consent to search by misrepresenting the nature or scope of his government

authority. See ESM, 645 F.2d at 316 n.7 (“In Tweel and Stuart, as in the case at

hand, the government agents were given access to records not available to the

general public, just because they were government agents.”); see also United States


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v. Bosse, 898 F.2d 113, 115 (9th Cir. 1990) (relying on ESM as persuasive

authority supporting the rule that consent is not voluntarily given “when a suspect

is informed that the person seeking entry is a government agent but is misinformed

as to the purpose for which the agent seeks entry”).

       Even if Tweel’s rule is limited to the administrative context, applying it

here hardly counts as a departure. In Tweel, the Internal Revenue Agent

represented to Mr. Tweel that he was conducting a civil audit, as opposed to the

actual criminal audit he was conducting. Here, Mr. Calderon-Fuentes was

confronted by an investigator from the VA, pretending to be a Homeland Security

employee who was seeking security-related information about Mr. Calderon-

Fuentes’s foreign travel. On my review of the record, it is not clear Mr. Calderon-

Fuentes’s was told the agents suspect him of criminal conduct. Thus, this seems to

me a circumstance where Tweel, not Spivy applies. See Spivy, 861 F.3d at 1213

(suggesting Tweel did not apply because the “suspect [wa]s aware of the criminal

nature of the investigation”).

      Our predecessor court gave relief to Mr. Tweel by suppressing the search

resulting from the IRS’s agent’s misrepresentation. I understand our Circuit’s

prior panel precedent rule to require us to use the same standard here. See Smith v.

GTE Corp., 236 F.3d 1292, 1299 n.8 (11th Cir. 2001) (“[T]he holding of the first

panel to address an issue is the law of this Circuit, thereby binding all subsequent


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panels unless and until the first panel’s holding is overruled by the Court sitting en

banc or by the Supreme Court.”). In light of the deception of the agents here, I

would grant Mr. Calderon-Fuentes’s motion to suppress. I respectfully dissent.




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