In United States v. Ochoa, No. 16-17609 (Oct. 25,
2019) (Hull, Rosenbaum, Grant), the Court affirmed the defendant's Hobbs
Act and firearm convictions and sentences over various challenges.
First, the Court found no abuse of discretion in the
limitation of cross examination of an officer about his unrelated personal misuse
of police computers and efforts to conceal that misuse. Although that decade-old misconduct was
relevant to his character for truthfulness, it was only marginally relevant in
this case, and the district court reasonably found that it was likely to
confuse or mislead the jury. Any error
was harmless in any event in light of other evidence at trial.
Second, the Court upheld the denial of pre- and post-Miranda
statements. As to the former, the Court
found that public safety exception to Miranda applied where the agent
asked questions that he reasonably believed were necessary to secure a
residence after the arrest of the defendant, who was a suspect in an armed
robbery where someone was shot. Although
the officer did not have any specific reason to suspect that any particular
person remained in the residence, his concern that other unknown individuals
might have remained inside, despite the defendant's assertion to the contrary,
was reasonable given the number of people who had already emerged from the
house. As to the post-Miranda
statements, the Court found that the defendant's statements that he did not
"agree with" the waiver of rights provision on the form did not constitute
an unambiguous invocation of his right to counsel or to remain silent. Any error was harmless in any event.
Third, the Court rejected the defendant's argument that the
district court should have dismissed one count of the original indictment with
prejudice due to a violation of the Speedy Trial Act. After a mistrial, the retrial did not occur
within 70 days and the indictment was therefore subject to dismissal. However, the court did not abuse its
discretion by dismissing it without (rather than with) prejudice because 922(g)(1)
was a serious offense, neither party alerted the court to the violation, and
the defense identified no prejudice. The
Court also rejected the defendant's argument that the district court should have
dismissed the second indictment under the Speedy Trial Act on the ground that
it was not filed within 30 days of his "arrest." The Court rejected the argument that the
defendant was "arrested" for purposes of the Act when he was
transferred from one federal prison to FDC for purposes of awaiting re-trial on
one dismissed count after having been convicted on other charges.
Fourth, the Court found that the evidence in the particular case was sufficient
to support the convictions for Hobbs Act robbery, 924(c), and 922(g)(1).
Fifth, the Court upheld the defendant's career offender
enhancement on the ground that Florida armed robbery and second-degree murder
were crimes of violence under the elements clause. As to the robbery, the Court included a
footnote reiterating its earlier suggestion in Fritts that, after 1976, sudden
snatching never constituted robbery under Florida law.
Lastly, the Court upheld an enhancement under 2K2.1 because
a large capacity magazine was found in close proximity to a firearm. Although the firearm was ultimately found
outside the residence, and not in close proximity to the magazine in the
bedroom drawer, the district court found that the firearm had previously been
in the same room, and possibly even the same drawer, as the magazine.
Judge Rosenbaum dissented on two points. First, although she agreed that there was no
abuse of discretion in limiting the cross examination, she did not agree
with the majority's suggestion that the officer's efforts to obstruct an investigation into
himself had no bearing on the likelihood that he may have manipulated evidence
in an investigation of another person. Second,
she believed that the public safety exception did not apply because the
officers were searching a private home and specifically asked about a weapon
that could only be operated by another person; and, although a close question, she
did not believe the error was harmless.
