United States v. Galindo-Serrano
Opinion
Gabriel Galindo-Serrano ("Galindo") appeals his convictions for various federal carjacking and firearm offenses relating to two incidents of carjacking in June and July of 2014 as well as his 600-month prison sentence. We affirm the convictions and the sentence.
I.
On July 24, 2014, a federal grand jury in the District of Puerto Rico indicted Galindo and co-defendant Jean Morales-Rivera ("Morales") for carjacking, in violation of
The indictment also charged Galindo with separate counts of carjacking "resulting in serious bodily injury, that is: sexual assault," in violation of
Galindo proceeded to trial on all five counts. Two days into the trial, he moved to suppress statements that he had made to Federal Bureau of Investigation ("FBI") agents following his arrest. In those statements, he confessed to both carjackings and to the sexual assault. The government objected that the motion to suppress was untimely. The District Court noted that the motion had "been filed belatedly," but decided to "have a [suppression] hearing anyway." The District Court denied the motion.
At trial, the government presented testimony from M.R.N. and N.A.M. In that testimony, they recounted the carjackings and positively identified Galindo as the perpetrator. The government also presented testimony from the operator who took M.R.N.'s 911 call, the individual who assisted N.A.M. after she had been abandoned on the basketball court, the doctor who treated N.A.M. at the hospital and performed her rape kit, and the DNA specialist who tested the rape kit and determined that the DNA samples from the rape kit matched Galindo's DNA.
In addition, the government presented testimony from police officers. They testified that they had heard Galindo's confession following his arrest and observed Galindo driving N.A.M.'s mother's car while in possession of a firearm. The defense did not present any evidence. A jury convicted Galindo of all counts.
At the beginning of Galindo's sentencing hearing on July 6, 2016, defense counsel pointed out that Galindo had signs of self-inflicted injury and moved for a continuance so that a competency evaluation could be undertaken. The District Court, noting a lack of evidence of psychological problems in the record, responded that it would go forward with the sentencing that day but indicated that it would order a post-sentencing competency evaluation. Based on "the report from the evaluation," the District Court would "[re]consider the matter [of competency]" and might "resentence [Galindo] ... or proceed accordingly, depending on the evaluation, what it says."
The District Court then sentenced Galindo to concurrent 120-month prison sentences for Counts One, Three, and Five to be served consecutive to a seven-year prison sentence for Count Two and a thirty-three-year prison sentence for Count Four. In total, the District Court sentenced Galindo to 600 months in prison.
After the District Court announced the sentence, defense counsel again objected that Galindo "may or may not be competent to understand what the proceedings have been here today." Defense counsel did not, at that time, make any other objection to Galindo's sentence based on the state of his mental health.
On July 7, 2016, defense counsel filed a motion for "an extension of time within which to file the notice of appeal or an appeal until 15 days after the mental health report is filed by the [Bureau of Prisons]." The District Court granted the motion on July 27, 2016.
The competency evaluation was filed with the District Court on November 23, 2016. The evaluation concluded that Galindo did not present with a mental disease or defect that rendered him incompetent to be sentenced. Galindo then appealed his *45 convictions and sentence on November 29, 2016.
On January 3, 2017, we issued an order to show cause why Galindo's appeal should not be dismissed as untimely. Federal Rule of Appellate Procedure 4(b) requires that a criminal "defendant's notice of appeal ... be filed within 14 days of the entry of ... the judgment ... being appealed." Fed. R. App. P. 4(b)(1)(A)(i). "Although the [D]istrict Court may extend the time for filing a notice of appeal by up to 30 additional days upon a showing of excusable neglect or good cause [under Federal Rule of Appellate Procedure 4(b)(4) ]," we explained, "the [D]istrict [C]ourt does not have authority" -- as it did here -- "to extend the time to appeal beyond that point [under Federal Rule of Appellate Procedure 26(b)(1) ]."
On January 17, 2017, the government filed a response to our show-cause order in which it "request[ed] that the instant appeal be dismissed as untimely." On January 20, 2017, Galindo filed a response to our show-cause order and cross-moved for a stay of his appeal pending the resolution of a separate motion to vacate his sentence that he had filed with the District Court on January 19, 2017.
On June 29, 2017, the government moved to withdraw its motion to dismiss the appeal as untimely. On July 13, 2017, we granted the government's motion to withdraw its motion to dismiss and denied Galindo's motion to stay his appeal. We have "h[e]ld that Rule 4(b)'s time limits are not 'mandatory and jurisdictional' in the absence of a timely objection from the government."
United States
v.
Reyes-Santiago
,
The separate January 19, 2017 motion to vacate Galindo's sentence was filed with the District Court on the understanding that "[t]he appeal st[ood] to be dismissed." In the motion, Galindo contended that, pursuant to
II.
We begin with Galindo's challenge to the District Court's denial of his motion to suppress his confession. "In considering a challenge to a district court's denial of a motion to suppress, we review the court's legal conclusions de novo and its findings of fact for clear error."
United States
v.
Jacques
,
Galindo premises his motion to suppress on the fact that he made his confession after he had been held in custody for more than eighteen hours without first having been presented to a magistrate judge. He contends that, contrary to the District Court's finding, this substantial delay in presenting him to a magistrate judge was *46 neither reasonable nor necessary. He thus contends that the District Court erred in denying his motion to suppress.
Under Federal Rule of Criminal Procedure 5(a)(1), a defendant who has been "arrest[ed] within the United States" is entitled to be brought "
without unnecessary delay
before a magistrate judge." Fed. R. Crim. P. 5(a)(1)(A) (emphasis added). The Supreme Court has explained -- in a line of precedent that begins with
McNabb
v.
United States
,
There is, however, another provision of federal law that is relevant. "Following the Supreme Court's articulation of the
McNabb
-
Mallory
exclusionary rule, Congress enacted
Notwithstanding the safe harbor that § 3501 establishes, the statute also provides that, if a confession is made more than six hours after a defendant's arrest and before his presentment to a magistrate judge, the "trial judge" is required to "find[ ]" that "the delay in bringing [the defendant] before [a] magistrate judge ... is ... reasonable" before admitting the confession.
There is one other provision of federal law that is relevant to Galindo's motion to suppress. Federal Rule of Criminal Procedure 12(b)(3)(C) provides that any "objections" concerning the "suppression of evidence" "must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b)(3)(C). Federal Rule of Criminal Procedure 12(c)(3), however, sets forth an exception to this requirement.
*47
The exception provides that "a court may consider [an untimely] objection ... if the party shows good cause." Fed. R. Crim. P. 12(c)(3). "We have interpreted the good cause standard to require a showing of both cause (that is, a good reason for failing to file a motion on time) and prejudice (that is, some colorable prospect of cognizable harm resulting from a failure to allow the late filing)."
United States
v.
Santana-Dones
,
Here, defense counsel moved to suppress Galindo's confession two days after his trial had already begun. Because the motion was untimely, the government argues that we should consider Galindo's motion waived under Federal Rule of Criminal Procedure 12(c)(3).
See, e.g.
,
United States
v.
Sweeney
,
When the District Court asked defense counsel why he had not "submit[ted] a motion to suppress before [trial]," he responded, "I don't know why I didn't. I overlooked it[.]" On appeal, Galindo offers no explanation for his failure to timely file the motion. 3 Moreover, the government represented below -- and defense counsel did not deny -- that in August 2014 it had provided to defense counsel "the information regarding when his client was arrested, when he was taken into MDC, by whom, at what time, [and] what the FBI did on July 9th and July 10th." 4 The government argued that there thus was "no reason why, a year and a half later, the defense is filing this motion to suppress."
The District Court did not make any express finding as to whether Galindo had shown "good cause" for the untimeliness of the motion to suppress. The District Court stated only that it was "going to have a [suppression] hearing anyway" and went on to address the merits.
The fact that the District Court addressed the merits of the suppression motion does not cure the defendant's waiver. A District Court "may opt to address a waived claim simply to create a record in the event that the appellate court does not deem the argument waived."
Walker-Couvertier
,
We are nonetheless troubled by the District Court's explanation for why it found that the eighteen-hour delay in bringing Galindo before a magistrate judge "was not unreasonable" and "was necessary" for the FBI "to be able to complete ... the booking [and] the other matters that the FBI was doing to obtain their case to be able to present it to the magistrate judge," which included "prepar[ation] [of the] search warrant." Thus, notwithstanding the waiver, we explain the source of our concern in order to clarify the law in this area.
The District Court made its findings regarding the nature of the delay based on the following undisputed facts. Galindo was arrested by Puerto Rico Police Department officers "around 7:00 p.m., at a public housing project," on July 9, 2014. The Puerto Rico Police immediately turned over custody of Galindo to the FBI. Galindo was detained at the Metropolitan Detention Center ("MDC") Guaynabo overnight.
That night, FBI agents prepared and obtained a warrant from a magistrate judge to search Galindo's mother's residence. FBI agents executed the search warrant from 1:30 a.m. to 2:00 a.m. and then "recessed" for the night.
The next day, on July 10, 2014, FBI agents took Galindo to the federal building to "process[ ]" him around 11:00 a.m. The FBI agents then read Galindo his rights around 1:30 p.m. and began his interview around 1:58 p.m. During the interrogation, Galindo confessed to both carjackings and to sexually assaulting N.A.M. Shortly after the FBI questioning, Galindo was brought before a federal magistrate judge.
Delay "for the purpose of interrogation" "is the epitome of 'unnecessary delay.' "
Corley
,
But, under
McNabb
-
Mallory
, "unexplained delays, despite being in close proximity to an available judge can be considered unreasonable."
United States
v.
Thompson
,
Thus, notwithstanding the District Court's finding that Galindo was not interrogated until shortly before his presentment to a magistrate judge, the critical question remains: what explains the delay at issue? The District Court found that the delay could be attributed to legitimate administrative concerns.
See
Jacques
,
The undisputed record shows that "there were, approximately, seven to 10
*49
people" "participating in th[e] investigation."
See, e.g.
,
United States
v.
Perez
,
The District Court also noted that some FBI agents were occupied with "prepar[ing] a search warrant" for Galindo's mother's residence, which involved "prepar[ing] the Affidavit, the Complaint, talk[ing] to the Assistant U.S. Attorney on duty, and thereafter go[ing] to the magistrate judge who is on duty to request for the search warrant." The record again does not show how many agents were involved in that process.
See
United States
v.
Valenzuela-Espinoza
,
Moreover, the fact that the FBI agents went to a magistrate judge within six hours of Galindo's arrest to obtain the search warrant raises a question as to "why [Galindo could] not [have] accompanied [the agents] to [the same magistrate] for arraignment at that time."
Perez
,
In any event, the search warrant and impending riot can at most explain the overnight delay in bringing Galindo before a magistrate judge.
See
Thompson
,
The District Court noted that Galindo had to be taken to and "processed at the FBI office." But, "[t]he government presented no evidence as to ... why [Galindo] had to be processed at the [FBI]
prior to
presentment."
Nonetheless, even if the confession should have been suppressed pursuant to
McNabb
-
Mallory
, we have no occasion to consider whether Galindo was prejudiced thereby because, as we have noted, his "suppression claim was waived -- and having waived it, [he] is not entitled to any appellate review."
5
Walker-Couvertier
,
*50 III.
Galindo next contends that his convictions and sentence must be vacated because the District Court erred in refusing to admit a Facebook photo of one of Galindo's friends. Galindo concedes that his unpreserved evidentiary objection must be reviewed only for plain error.
See
United States
v.
Reda
,
Galindo's only defense at trial to the July 2014 carjacking was that N.A.M. consented to letting Galindo into her car and to having sexual intercourse with him. In support of that defense, defense counsel asked N.A.M. during cross-examination whether, prior to the carjacking, she had met Galindo or Erick Joel Estrada Morales ("Estrada"), whom Galindo sought to show was a mutual acquaintance. N.A.M. denied knowing either Galindo or Estrada. Defense counsel then sought to ask N.A.M. whether she recognized Estrada in a Facebook photograph. The District Court refused to admit the photograph on the ground that it had not been properly authenticated. Six months after the trial, defense counsel made a proffer under Federal Rule of Evidence 103(a)(2) regarding the photo, which the District Court denied at sentencing as untimely.
Under Federal Rule of Evidence 901, "the proponent [of an item of evidence] must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). Here, defense counsel had proposed to introduce the photograph at issue only by "turn[ing] the computer on and show[ing] [the photograph] to [the Court] on Facebook." Defense counsel did not -- during his initial offer or in his subsequent untimely proffer -- point to any evidence that was "extrinsic to the document or item itself" or to "elements of the document itself," which would provide "enough support ... to warrant a reasonable person in determining that the evidence is what it purports to be."
United States
v.
Blanchard
,
Galindo does contend that the District Court's refusal to admit the photograph wrongly precluded him from "develop[ing] th[e] line of questioning" concerning whether N.A.M. knew Galindo or his friend, which was "crucial to the defense theory of consent." But, that contention fails because "[the defendant's] ... right to present a complete defense ... do[es] not create an auxiliary right to have all ... evidentiary rulings turn in his favor."
United States
v.
Gemma
,
IV.
We turn, then, to Galindo's challenge to his 600-month prison sentence, which he contends was procedurally and substantively unreasonable. We review a preserved claim of sentencing error for abuse of discretion.
See
United States
v.
Cortés-Medina
,
*51 A.
Galindo contends that the District Court erred in failing to reconsider -- under
Galindo points to no authority to support his assertion that a District Court must redo its § 3553(a) analysis
sua sponte
after having received the results of a post-sentencing competency evaluation.
See
United States
v.
Morosco
,
The competency evaluation included more detailed medical information concerning Galindo's history of personality disorders, ADHD, and various drug and alcohol abuse disorders. But, the District Court had already specifically noted at sentencing that Galindo had "abandoned school in seventh grade and has received no further educational or vocational training," "was classified under special education and diagnosed with attention deficit disorder with hyperactivity," "has a history of aggressive and impulsive behavior for which he has received treatment, but abandoned it at the age of 16," and "has a history of poly drug use since age 15." Galindo does not point to any specific mental health issue noted in the competency evaluation that had not been raised to the District Court by the PSR or the other materials that the District Court considered at sentencing.
Cf.
United States
v.
Alvarez-Cuevas
,
To the extent that Galindo means to argue that the District Court erred by not considering these mitigating features concerning his mental health at all in sentencing him, the record does not support that conclusion. In fact, the District Court explicitly stated that it "ha[d] considered the ... sentencing factors as set forth in
The District Court did not expressly reference
Finally, to the extent that Galindo means to argue that the District Court erred in not assigning enough weight to his mental health history, he "face[s] an uphill battle."
United States
v.
Caballero-Vázquez
,
Here, the record shows that the District Court found the aggravating factors -- specifically, Galindo's criminal history, "the violence inflicted upon the victims," and "the nature and circumstances of the offense" -- to be more compelling than the mitigating factors that it previously had noted.
See
B.
Galindo separately contends that the sentence imposed was unreasonable because the District Court failed to account for "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
"We have said that § 3553(a)(6) is primarily concerned with national disparities," but we will also "examine[ ] arguments ... that a sentence was substantively unreasonable because of the disparity with the sentence given to a co-defendant."
United States
v.
Reverol-Rivera
,
We "have routinely rejected disparity claims" where "complaining defendants ... fail to acknowledge material differences between their own circumstances and those of their more leniently punished confederates."
Reyes-Santiago
,
V.
For the foregoing reasons, we affirm Galindo's convictions and sentence.
Although Galindo points out on appeal that the District Court acted prematurely by imposing his sentence before it had received and reviewed the competency report, he does not make any developed argument to explain why his sentence should be vacated on this basis.
See
United States
v.
Zannino
,
Specifically, if a "confession was made or given by [a] person within six hours immediately following his arrest or other detention," the confession "shall not be inadmissible
solely
because of [the] delay in bringing such person before a magistrate judge."
Defense counsel states in his reply brief, without any further explanation, that "[t]here was a series of undue delay[s] in bringing this case for trial by the Government as the record clearly indicates that attributed to delays."
Defense counsel did represent to the District Court that the government filed its designation of evidence expressing its intent to offer evidence of the "[d]efendant's statements" only eight days before the start of trial. But, the government explained, "even though the government formally filed the designation in 2016, the truth is that in the discovery letter given to Brother Counsel in 2014, in the second page, the United States specifies that we are designating every item on that discovery letter under [Federal Rule of Criminal Procedure] 12(b)(4)(A) [,] [which] means we are designating all that discovery like we're going to use that discovery on trial." Defense counsel did not respond to the government's explanation at the suppression hearing, nor does he raise that issue on appeal.
For the same reason, we must also reject Galindo's challenges -- raised for the first time on appeal -- to the admission of his confession based on his limited mental capacity and the government's failure to record the interrogation.
Morales's sentence encompassed only his participation in the first carjacking and the lesser included offense of carrying and using a firearm in relation to a crime of violence. In contrast, Galindo's sentence encompassed the more serious offense of brandishing a firearm in relation to a crime of violence as well as his participation in both the first and second carjackings, the resulting bodily harm inflicted by him in sexually assaulting N.A.M., and the felon-in-possession offense.
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Gabriel GALINDO-SERRANO, Defendant, Appellant.
- Cited By
- 7 cases
- Status
- Unknown