                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2007

USA v. Linarez-Delgado
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2876




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 06-2876


                            UNITED STATES OF AMERICA

                                              v.

                            HECTOR LINAREZ-DELGADO,
                                            Appellant


                       Appeal from the United States District Court
                               for the District of New Jersey
                            (D.C. Criminal No. 03-cr-00130-1)
                       District Judge: Honorable William H. Walls


                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 14, 2007

      Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                                (Filed: December 19, 2007)


                                OPINION OF THE COURT


RENDELL, Circuit Judge.

       Hector Linarez-Delgado appeals his conviction for conspiracy to import

approximately 16 kilograms of ecstasy in violation of 21 U.S.C. § 963, conspiracy to

distribute and to possess with intent to distribute ecstasy in violation of 21 U.S.C. § 846,
and four substantive counts of importation of ecstasy in violation of 21 U.S.C. §§ 952,

960(a)(1) and (b)(3), and 18 U.S.C. § 2, as well as the sentence of 170 months of

imprisonment imposed by the District Court. For the reasons that follow, we will uphold

the jury’s verdict and affirm the sentence imposed by the District Court.

       Because we write for the parties, we set out only those facts that are pertinent to

our analysis. Linarez-Delgado was the leader of an ecstasy importation conspiracy who

recruited and trained four drug couriers and provided them with instructions, travel

arrangements, and cash for the purchase and importation of ecstasy from Amsterdam.

Following the arrest of one of these couriers, Linarez-Delgado fled the country. When

Linarez-Delgado attempted to re-enter the country, a Customs Officer detained him,

searched his belongings, and discovered a camcorder. The Customs Officer viewed video

footage on the camcorder, which revealed that Linarez-Delgado went by the name

“Sebastian” and thus might be a suspected drug trafficker for whom a warrant had been

issued. Upon confirmation of his identity, Linarez-Delgado was placed under arrest.

       Linarez-Delgado raises four issues on appeal. First, he argues that the District

Court improperly denied his motion to suppress the videotape, which, he asserts, was

seized and viewed in violation of the Fourth Amendment. This argument is without

merit. Customs Officers exercise broad authority to conduct routine searches and seizures

for which the Fourth Amendment does not require a warrant, consent, or reasonable

suspicion. See United States v. Glasser, 750 F.2d 1197, 1201 (3d Cir. 1984); United



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States v. Scheer, 600 F.2d 5, 7 (3d Cir. 1979). The Customs Officer’s viewing of the

videotape here was permissible as part of the key function of his job, to ensure that

contraband does not enter the United States. Such searches fall within the broad authority

granted to Customs Officers by statute. 19 U.S.C. § 1582; 19 C.F.R. § 162.6. Data

storage media and electronic equipment, such as films, computer devices, and videotapes,

may be inspected and viewed during a reasonable border search. See United States v.

Borello, 766 F.2d 46, 58-59 (2d Cir. 1985); United States v. Ickes, 393 F.3d 501 (4th Cir.

2005). Therefore, Linarez-Delgado’s argument that the Customs Officer’s viewing of the

content of his camcorder amounted to an unreasonable search fails.

       Second, Linarez-Delgado argues that the District Court abused its discretion by

admitting the following testimony: (1) a co-conspirator’s testimony regarding Linarez-

Delgado’s attempts to bribe and threaten him into changing his testimony; (2) testimony

by one co-conspirator that another co-conspirator sold ecstasy for Linares-Delgado; and,

(3) the testimony of a Customs Officer regarding the videotape. When a defendant

objects to the introduction of such evidence under Fed. R. Evid. 404(b), this Court

reviews the District Court’s ruling for an abuse of discretion. See United States v.

Williams, 458 F.3d 312, 319 (3d Cir. 2006). We, therefore, review admission of the first

statement for abuse of discretion. As to his second and third objections, however, we

review the District Court’s rulings for plain error, Fed. R. Crim. P. 52(b), because,

although Linarez-Delgado raised an objection in a pretrial motion in limine which was



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deferred, he received no definitive ruling and failed to renew his objection at trial so as to

preserve the issue. Fed. R. Evid. 103(a).

       As to the first item of disputed testimony, prior to trial the government moved

pursuant to Fed. R. Evid. 404(b) to introduce testimony regarding Linarez-Delgado’s

attempts to tamper with witnesses. This testimony was properly admitted under the four-

prong test for admission of Rule 404(b) evidence. Huddleston v. United States, 485 U.S.

681 (1988). First, the evidence had a proper evidentiary purpose because it was

introduced to show Linarez-Delgado’s consciousness of guilt. United States v. Gatton,

995 F.2d 449 (3d Cir. 1993). Second, the evidence was relevant. Third, the probative

value of the evidence was not substantially outweighed by its potential for unfair

prejudice. The testimony served to demonstrate Linarez-Delgado’s consciousness of

guilt, not his propensity to commit crimes. Finally, the District Court properly instructed

the jury to consider the evidence only for the limited purpose for which it was admitted.

       As to the admission of co-conspirator testimony regarding ecstacy sales and the

Customs Officer’s very limited testimony as to the contents of the videotape, a review of

the record reveals no abuse of discretion, let alone plain error, by the District Court. The

testimony of the co-conspirator was admitted not under Fed. R. Evid. 404(b), but rather as

intrinsic to the charged conspiracy, see Fed. R. Evid. 404(b), Advisory Committee Note

(1991), and was properly admitted. To the extent that the Customs Officer’s testimony

regarding the content of the videotape can be considered to refer to a prior bad act under



                                              4
Rule 404(b), its probative value outweighed any prejudice and it otherwise satisfied the

relevant test for admissibility under Huddleston.

       Linarez-Delgado next contends that statements he made to a Customs Officer

when he attempted to enter the United States should have been suppressed because the

Officer did not advise him of his constitutional rights pursuant to Miranda v. Arizona,

384 U.S. 436, 444 (1966). Miranda warnings, however, are required only when a suspect

is subject to custodial interrogation. Miranda, 384 U.S. at 444. Linarez-Delgado freely

presented himself in the territory of the United States when he attempted to enter Puerto

Rico and, therefore, was subject to routine border questioning. See, e.g, United States v.

Ozuna, 170 F.3d 654, 659 (6th Cir. 1999); United States v. Silva, 715 F.2d 43, 46-47 (2d

Cir. 1983). Because Linarez-Delgado was not in custody and his statements were made

in response to a routine border inquiry, Miranda warnings were not required. The District

Court, therefore, properly denied Linarez-Delgado’s motion to suppress.

       Finally, Linarez-Delgado claims that his 170-month sentence is unreasonable

because the District Court failed to properly weigh the 18 U.S.C. § 3553(a) factors. We

review the overall sentence for reasonableness. United States v. Grier, 475 F.3d 556, 568

(3d Cir. 2006) (citing United States v. Booker, 543 U.S. 220, 260-63 (2005)). The record

establishes that the District Court properly considered the factors found in 18 U.S.C. §

3553(a), complying with this Court’s decision in United States v. Cooper, 437 F.3d 324

(3d Cir. 2006). Its meaningful consideration of those factors led it to impose a sentence



                                             5
65 months below the bottom of the applicable Guideline Range. Linarez-Delgado’s

argument that his sentence is unreasonable fails.

       For the foregoing reasons, we will uphold the jury’s verdict and affirm the

sentence imposed in the Judgment and Commitment Order of the District Court.




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