     11-2988-cr
     United States v. Pascual
 1                               UNITED STATES COURT OF APPEALS
 2                                   FOR THE SECOND CIRCUIT
 3
 4                                        SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
 9   CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
11   “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 13th day of November, two thousand twelve.
17
18   PRESENT: JOHN M. WALKER, JR.,
19            GERARD E. LYNCH,
20            RAYMOND J. LOHIER, JR.,
21                          Circuit Judges.
22
23   ————————————————————————
24
25   UNITED STATES OF AMERICA,
26                           Appellee,
27
28                              v.                                            No. 11-2988-cr
29
30    MINERVA PASCUAL,
31                                         Defendant-Appellant,
32
33   ERNESTO BOCANEGRA, HAZEL CRUZ,
34
35                 Defendants.*
36   ————————————————————————
37
38   FOR APPELLANT:                  MITCHELL J. DINNERSTEIN, New York, New York.
39
40   FOR APPELLEE:                   WALTER M. NORKIN, Assistant United States Attorney
41                                   (Susan Corkery, on the brief), for Loretta E. Lynch, United
42                                   States Attorney for the Eastern District of New York,
43                                   Brooklyn, New York.

                *
            The Clerk of the Court is directed to amend the official caption in the case to
     conform to the caption listed above.
 1          Appeal from a judgment of the United States District Court for the Eastern District

 2   of New York (Raymond J. Dearie, Judge).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court is AFFIRMED.

 5          Defendant Minerva Pascual appeals her conviction, after a jury trial, of conspiring to

 6   import and distribute cocaine and her resulting sentence to ten years’ imprisonment.1 Pascual

 7   argues principally that the district court erred in: (1) not suppressing evidence seized from

 8   her car; (2) declining to give a “missing witness” instruction; and (3) admitting into evidence

 9   cell-site records obtained pursuant to a subpoena. We assume the parties’ familiarity with

10   the underlying facts, the procedural history, and the issues presented for review.

11   A.     Search of Pascual’s Car

12          Pascual first argues that the items seized from her car without a warrant on the night

13   of her arrest should have been suppressed. Government agents searched Pascual’s car

14   immediately after her arrest in East Harlem and again several hours later, after driving the

15   car to their office at JFK Airport. The district court initially found, after a suppression

16   hearing at which Pascual and the relevant agents testified, that the second search was lawful

17   because Pascual had voluntarily consented to it.

18          During trial, an agent’s testimony brought the circumstances surrounding Pascual’s

19   consent into question, and Pascual moved for reconsideration of the district court’s decision.



            1
              Pascual was convicted at her second trial, after the jury at the first trial failed to
     reach a verdict. All references to “the trial” in this Order are to the second trial.

                                                   2
 1   The government adhered to its position that Pascual had validly consented to the search and

 2   argued in the alternative that suppression was not required under the inevitable discovery

 3   doctrine. The district court sua sponte suggested that the search might have been justified

 4   under the automobile exception. See Carroll v. United States, 267 U.S. 132 (1925). The

 5   district court declined to decide the issue during trial, however, and instead deferred the issue

 6   to a post-trial conference. Shortly after trial, Pascual submitted a brief arguing that neither

 7   the inevitable discovery doctrine nor the automobile exception applied.

 8          At the post-trial conference on Pascual’s motion, the district court offered to reopen

 9   the suppression hearing so that both sides could submit additional evidence, but the parties

10   declined. After hearing argument, the district court granted the motion for reconsideration

11   and withdrew its finding that Pascual had voluntarily consented to the search, citing troubling

12   inconsistencies in the agents’ trial testimony.2 The district court nonetheless again denied

13   the motion to suppress, finding that “there was probable cause to conduct the search” of

14   Pascual’s car.

15          Pascual makes four arguments that the district court erred in denying her renewed

16   suppression motion. First, she argues that the district court’s finding that there was probable

17   cause to believe that evidence of a crime would be found in the car was incorrect. “Under

18   the ‘automobile exception’ to the Fourth Amendment warrant requirement, police may

19   conduct a warrantless search of a readily mobile motor vehicle if probable cause exists to



            2
             The district court made clear, however, that it did not find the agents incredible, not
     withstanding the inconsistencies in their testimony.

                                                    3
 1   believe the vehicle contains contraband or other evidence of a crime.” United States v.

 2   Gaskin, 364 F.3d 438, 456 (2d Cir. 2004); see also United States v. Howard, 489 F.3d 484,

 3   492 (2d Cir. 2007) (same).

 4          Here, the agents had probable cause to believe that Pascual’s car contained evidence

 5   of a crime. Pascual was arrested shortly after agents arrested her cousin, Hazel Cruz, during

 6   a controlled delivery of four kilograms of cocaine by a drug courier from Peru turned

 7   confidential informant. The informant, who had thus far accurately described his drug

 8   dealings, told the agents that a woman of Pascual’s description, in a car that he described, had

 9   driven Cruz to a prior drug delivery. Pascual was then found in a car matching the

10   informant’s description not far from the drug transaction. Although Pascual was alone in the

11   car, the agents observed multiple cell phones and two purses in plain view in the car. The

12   agents knew that Cruz had not carried a purse to the transaction, suggesting that one of the

13   purses and possibly one or more of the phones belonged to Cruz. Further, an agent testified

14   that one of the bags was open and contained “a white envelope with what looked to be a

15   large sum of money kind of like sitting in there.” When asked by agents what she was doing

16   in the car, Pascual responded that she was waiting for her cousin “Hazel,” which the agents

17   confirmed was the name of the woman who had just been apprehended taking delivery of the

18   drugs. Given the cumulative effect of this information, the agents clearly had probable cause

19   to believe that evidence of narcotics offenses would be found in the car. See United States

20   v. Gagnon, 373 F.3d 230, 240 (2d Cir. 2004) (holding that automobile exception applied to

21   search of defendant’s tractor trailer, where confidential informant who was detained at border



                                                    4
 1   with a trailer full of marijuana told agents that he was driving to meet the defendant to

 2   exchange trailers, and defendant subsequently arrived at the location described, at the time

 3   described, in a tractor with an empty trailer that matched informant’s description).

 4          Second, Pascual argues that the scope of the search (which included the search of

 5   containers inside the car and the trunk) and its timing (two hours after Pascaul’s arrest)

 6   exceeded what is permitted by the automobile exception. Under that exception, “[t]he police

 7   may search an automobile and the containers within it where they have probable cause to

 8   believe contraband or evidence is contained.” California v. Acevedo, 500 U.S. 565, 580

 9   (1991). “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the

10   search of every part of the vehicle and its contents that may conceal the object of the search.”

11   United States v. Ross, 456 U.S. 798, 825 (1982); see also Arizona v. Gant, 556 U.S. 332, 347

12   (2009) (noting that “[i]f there is probable cause to believe a vehicle contains evidence of

13   criminal activity,” the automobile exception “authorizes a search of any area of the vehicle

14   in which the evidence might be found”). The scope of the search was therefore clearly within

15   the boundaries of the automobile exception.3 The timing of the search of the car at the airport

16   was similarly permissible. Delays in automobile searches of several hours, or even days,

17   have been found constitutional. See United States v. Johns, 469 U.S. 478, 487-88 (1985)

            3
              Because the search was authorized by the automobile exception, we do not need to
     address Pascual’s argument that certain aspects of the search were not justified by the search
     incident to arrest exception. While the district court did discuss Gant at the status
     conference, it ultimately held that “there was probable cause to conduct the search” of the
     vehicle pursuant to the separate and conceptually distinct automobile exception, and
     therefore the limitations placed on searches incident to arrest do not apply. See Gant, 556
     U.S. at 347 (noting that the “scope of the search authorized [by the automobile exception]
     is broader” than that authorized in searches incident to arrest).

                                                    5
 1   (holding that delay of three days “was reasonable and consistent with our precedent

 2   involving searches of impounded vehicles”); United States v. Harwood, 998 F.2d 91, 97 (2d

 3   Cir. 1993) (holding that delay of “several hours after [the vehicle] was seized” was

 4   reasonable).

 5          Third, Pascual argues that the case must be remanded for further factfinding, because

 6   the district court did not find sufficient specific facts to support its probable cause

 7   determination. We have remanded for further factfinding where the factual record was

 8   incomplete,4 or where the district court’s probable cause finding lacked clarity.5 Neither of

 9   those concerns is present here. The district court made its finding after a full suppression

10   hearing, two trials, and multiple rounds of briefing by both parties, both of whom declined

11   an opportunity to present additional evidence. While the district court could have further

12   elaborated its finding, its holding and its legal justification were perfectly clear.

13          Fourth, Pascual argues that the government waived its claim that the search was

14   supported by probable cause by failing to assert that theory in any of its submissions.

15   Pascual argues that Federal Rule of Criminal Procedure 12(e) “essentially forbids the court

16   from relying on a theory that the Government failed to ever assert.” However, Rule 12 on

            4
               See United States v. Gaines, 457 F.3d 238, 244 (2d Cir. 2006) (remanding where
     district court made “anomalous and incomplete” factfindings); United States v. Pena, 961
     F.2d 333, 337 (2d Cir. 1992) (remanding where record did not allow the panel to determine
     whether the defendant had a reasonable expectation of privacy in the car being searched);
     United States v. Gorski, 852 F.2d 692, 696 (2d Cir. 1988) (remanding where there was no
     evidence that it was inevitable that an inventory search would be conducted).
            5
              See United States v. Matsushita, 794 F.2d 46, 49 (2d Cir. 1986) (remanding where
     it was unclear whether the district court’s probable cause finding referred to the initial seizure
     or the defendant’s eventual arrest at the police station).

                                                     6
 1   its face applies only to motions, not arguments by the party opposing a Rule 12 motion. The

 2   cases cited by Pascual are unpersuasive, as they involve district courts using their discretion

 3   to manage their dockets by preventing parties from raising new issues on the eve of trial. See

 4   United States v. Melendez, No. 10 cr. 145, 2010 WL 4323607 (E.D. Cal. Oct. 25, 2010);

 5   United States v. Reyes, No. 91 cr. 56S, 1993 WL 8775 (W.D.N.Y. Jan. 13, 1993), aff’d, 999

 6   F.2d 536 (2d Cir.1993); United States v. Ramos, 753 F. Supp. 75, 80 (W.D.N.Y. 1990). That

 7   is a far cry from an appellate court barring a district court from considering an argument that

 8   became relevant only because the district court reversed its original decision post-trial based

 9   on new evidence. Pascual cites no case, and we have found none, supporting the remarkable

10   proposition that probative evidence should be suppressed not because police officers violated

11   the Constitution, but because the prosecutor failed to cite the correct precedent that

12   established the legality of the officers’ actions. Pascual’s argument that the district court

13   “misspoke” when it ruled that there was probable cause to support the search, is fanciful.

14   B.     Missing Witness Instruction

15          Pascual next argues that the district court erred by declining to give a missing witness

16   instruction, given the government’s failure to call Agent Michael Fernandez, the arresting

17   officer, as a witness at trial. “A missing witness charge invites the jury to draw an adverse

18   inference against a party that fails to call a witness whose production . . . is peculiarly within

19   [its] power.” Gaskin, 364 F.3d at 463 (alterations in original) (internal quotation marks

20   omitted).

21

                                                     7
 1          We reverse a refusal to give a missing witness instruction “only upon a showing of

 2   both abuse of discretion and actual prejudice.” Id. (citation omitted). A district court’s

 3   “failure to give the instruction rarely warrants reversal.” United States v. Slaughter, 386 F.3d

 4   401, 403 (2d Cir. 2004) (internal quotation marks omitted). The “considerable discretion”

 5   granted to district court acknowledges the fact that “an ‘aura of gamesmanship’ frequently

 6   accompanies requests for missing witness charges.” Gaskin, 364 F.3d at 463, quoting

 7   United States v. Mittelstaedt, 31 F.3d 1208, 1216 (2d Cir. 1994).

 8          Pascual’s argument bears just such an aura: the government notes that at Pascual’s

 9   request, Fernandez was in the courthouse and available to Pascual to testify during trial, but

10   Pascual did not call him. Further, the district court permitted Pascual to argue in summation

11   that the jury should draw an adverse inference against the government for failing to call

12   Fernandez. See United States v. Torres, 845 F.2d 1165, 1171 (2d Cir. 1988) (noting that

13   “where a judge refrains from commenting on the inference to be drawn on the facts before

14   the jury and allows counsel instead to argue the inference, the wisdom of a reversal is even

15   more suspect”). Under these circumstances, the district court was well within its discretion

16   in deciding not to give a missing witness instruction.

17   C.     Cell Phone Location Records

18          Finally, Pascual argues that the district court improperly admitted cell-site records

19   secured pursuant to a subpoena, without a warrant or a showing of probable cause. Pascual

20   cites a recent district court opinion finding that a government request for “at least 113 days

21   of cumulative cell-site-location records” constituted a search, and therefore required “a

                                                    8
 1   warrant and the requisite showing of probable cause.” In re Application of United States,

 2   809 F. Supp. 2d 113, 127 (E.D.N.Y. 2011).

 3          As Pascual did not raise this argument below, we review the district court’s decision

 4   for plain error. See Fed. R. Crim. P. 52(b). “As a general rule, we reserve a finding of

 5   plainness to situations where a trial court’s ruling contravenes clearly established precedent.”

 6   United States v. Brown, 352 F.3d 654, 665 n.10 (2d Cir. 2003). Given this narrow standard

 7   of review, we need not reach the merits of Pascual’s argument: any error was certainly not

 8   plain. In re Application of the United States is (at the very least) in some tension with

 9   prevailing case law,6 and in any event was itself decided well after Pascual’s trial. It

10   certainly was not plain error for the district court not to anticipate this innovative argument

11   and sua sponte exclude the evidence, when no governing precedent from this Court or the

12   Supreme Court required exclusion, and the general principles adopted by those courts

13   pointed the other way.

14          For the foregoing reasons, the judgment of conviction is AFFIRMED.

15
16                                       FOR THE COURT:
17                                       Catherine O’Hagan Wolfe, Clerk of Court
18
19




            6
              See Smith v. Maryland, 442 U.S. 735, 742-44 (1979) (holding that a customer has
     no reasonable expectation of privacy in dialed telephone numbers which were conveyed to
     the telephone company); United States v. Miller, 425 U.S. 435, 443 (1976) (holding that
     Fourth Amendment did not “prohibit the obtaining of information revealed to a third party
     and conveyed by him to Government authorities”).

                                                    9
