USA v. Johnny Ordaz

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13423
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY ORDAZ,
a.k.a. Jo,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00070-VMC-AEP-1
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2 Opinion of the Court 21-13423
____________________
Before J ILL PRYOR , BRANCH, and H ULL , Circuit Judges.
PER CURIAM:
After a jury trial, Johnny Ordaz appeals his convictions for
(1) possession with intent to distribute fentanyl, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C) (“Count 1”); (2) possession of a
firearm in furtherance of a drug-trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A)(i) (“Count 2”); and (3) felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (“Count
3”).
On appeal, Ordaz argues the district court erred: (1) by
denying his motion to dismiss Count 3, in which he challenged the
constitutionality of 18 U.S.C. § 922(g)(1); (2) by denying his motion
to suppress; and (3) by denying his motions for a judgment of
acquittal on Count 2. Ordaz also argues the district court at trial
abused its discretion by limiting Ordaz’s cross-examination of an
officer involved in the traffic stop. After review, we affirm Ordaz’s
convictions.
I. MOTION TO DISMISS COUNT 3
We generally review for abuse of discretion a district court’s
denial of a motion to dismiss an indictment. United States v.
Vineyard, 945 F.3d 1164, 1167 (11th Cir. 2019). But we review de
novo the constitutionality of a statute. United States v. Wright,
607 F.3d 708, 715 (11th Cir. 2010). Ordaz contends that Congress
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exceeded its authority under the Commerce Clause in enacting
§ 922(g)(1).
As Ordaz concedes, however, his facial and as-applied
challenges to the constitutionality of § 922(g)(1) are foreclosed by
our precedent. See United States v. Vega-Castillo, 540 F.3d 1235,
1236 (11th Cir. 2008). Specifically, “[w]e have repeatedly held that
Section 922(g)(1) is not a facially unconstitutional exercise of
Congress’s power under the Commerce Clause[.]” United States v.
Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011).
Likewise, our Court has held that § 922(g)(1) is not
unconstitutional as applied to a defendant who possessed a firearm
only intrastate where the government demonstrates that the
particular firearm had traveled in interstate commerce. Id.
Here, at trial, the government demonstrated that Ordaz’s
firearm had traveled in interstate commerce. Jeffrey Burt, an agent
with the Bureau of Alcohol, Tobacco, Firearms and Explosives,
testified that the firearm found between the driver’s seat and center
console of Ordaz’s car was manufactured outside of Florida, where
Ordaz’s crimes occurred. See Wright, 607 F.3d at 715-16 (holding
the government need show only a minimal nexus between the
firearm and interstate commerce, such as evidence that the firearm
was manufactured outside of the state where the defendant
possessed it).
Accordingly, we affirm the district court’s denial of Ordaz’s
motion to dismiss Count 3.
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II. MOTION TO SUPPRESS
Next, Ordaz argues that the district court erred in denying
his motion to suppress because the police stopped and searched his
car without probable cause. Ordaz argues evidence obtained as a
result of the search should have been suppressed.
At a hearing on Ordaz’s motion to suppress, the government
presented the following testimony of Detectives Joe Petta, John
Thames, Eric Davis, and Jonathan Kruse. At the time of the traffic
stop, the detectives were familiar with Ordaz due to his suspected
involvement in fentanyl distribution and a homicide. Prior to the
traffic stop, they also knew that Ordaz was a convicted felon. On
September 5, 2019, detectives saw Ordaz’s gray four-door Infiniti
parked at his mother’s house, and detectives parked nearby to
conduct surveillance. The tint on the Infiniti’s windows was so
dark that detectives could not determine the race or sex of the
driver or how many other people were in the car. As the Infiniti
exited Ordaz’s mother’s neighborhood, Detective Petta, from his
undercover police car, saw the Infiniti run a stop sign.
The Infiniti continued to drive toward the next intersection,
where Detectives Thames, Davis, and Scott Williamson were
parked in another undercover police car. Detective Petta radioed
those detectives to tell them that the Infiniti had run a stop sign.
Those detectives radioed back that they saw the Infiniti run a
second stop sign. The detectives did not initiate a traffic stop on
the Infiniti at that time because their vehicles did not have lights or
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sirens. Instead, they radioed Detective Kruse, whose car had lights
and sirens, for assistance.
The two undercover police cars followed the Infiniti for forty
blocks until it parked at an apartment complex, at which point
Detective Kruse arrived in a third police car. As the Infiniti
attempted to pull out of the apartment complex, Detective Kruse
activated his lights and blocked the Infiniti’s path. Detective Kruse
exited his car and approached the Infiniti, but the Infiniti began to
back up 30 to 40 yards until it reached the end of the parking lot.
Detective Williamson then opened the Infiniti’s driver’s door
and Ordaz exited the car. Detective Davis, who was standing in
front of the open driver’s door, saw a firearm with an extended
magazine between the driver’s seat and center console, and he
yelled out that he saw a gun. Detective Davis also smelled
marijuana and saw a marijuana cigarette in the driver’s side door.
At the suppression hearing, Ordaz testified to the following.
On September 5, 2019, Ordaz went from his mother’s house to an
apartment complex to meet a friend. As Ordaz left his mother’s
house, he stopped at the first stop sign. Ordaz then proceeded to
the next intersection and made a complete stop at the stop sign
there too. Ordaz was careful to stop at those two intersections
because they were in a busy area with a lot of accidents. Once he
arrived at the apartment complex, Ordaz backed into a parking
spot, called his friend, and then realized his friend was not home.
As Ordaz exited the parking spot, a car pulled in front of
him. Ordaz was scared because he was recently shot, and he began
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6 Opinion of the Court 21-13423
reversing his car. Then Ordaz saw lights in the grill of the car in
front of him and knew it was the police. Because he was in the
middle of the parking lot, Ordaz continued to back up until he
reached a parking spot. Ordaz assumed the window tint on his
Infiniti was legal because he bought it from a dealership with the
windows already tinted.
After the hearing, the magistrate judge issued a report and
recommendation (“R&R”) that Ordaz’s motion to suppress should
be denied because the officers had probable cause to initiate the
traffic stop and search Ordaz’s car. The magistrate judge credited
the officers’ testimony that Ordaz ran two stop signs and that they
believed his car had illegally dark window tint, which established
probable cause to initiate the stop. The magistrate judge noted that
the officers’ testimony was consistent about key events, and that
the officers’ interest in Ordaz’s involvement in fentanyl distribution
and a homicide was irrelevant to its probable cause analysis. The
magistrate judge concluded that Ordaz was not credible because
he had “substantial motivation to be less than candid in his
testimony.” Further, the magistrate judge found that the officers
had probable cause to search Ordaz’s car because the officers
properly ordered Ordaz out of his car after the traffic stop,
observed a firearm between the driver’s seat and center console,
and knew he was a felon unable to possess firearms.
Ordaz objected to the R&R, arguing that the magistrate
judge erred in crediting the officers’ testimony over his own.
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Specifically, Ordaz argued that the magistrate judge failed to
consider the officers’ biases and motives in following Ordaz’s car.
The district court overruled Ordaz’s objections and adopted
the R&R. The district court found that the officers’ testimony was
consistent as to the circumstances leading to the traffic stop, and
that the magistrate judge noted the officers’ potential ulterior
motives in following Ordaz but still found the officers to be
credible. The district court thus deferred to the magistrate judge’s
credibility determination and adopted its finding that the officers
had probable cause to stop Ordaz’s car because he ran two stop
signs and had illegal window tint on his car.
In this appeal, when faced with a challenge to the denial of
a motion to suppress, we review findings of fact for clear error and
the application of law to those facts de novo. United States v. Smith,
459 F.3d 1276, 1290 (11th Cir. 2006). We construe the district
court’s fact findings in the light most favorable to the prevailing
party. Id.
First, the district court did not err by finding that the police
had probable cause to initiate the traffic stop because three officers
testified at a suppression hearing that they saw Ordaz run two stop
signs, which is a traffic violation under Florida law. See Fla. Stat.
§ 316.123(2)(a); Whren v. United States, 517 U.S. 806, 810 (1996) (“As
a general matter, the decision to stop an automobile is reasonable
where the police have probable cause to believe that a traffic
violation has occurred.”).
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Although Ordaz testified that he did not commit these traffic
violations, the magistrate judge and district court were allowed to
believe the officers’ testimony to the contrary, and we defer to that
credibility determination because nothing in their “understanding
of the facts appears to be unbelievable.” See United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quotation marks
omitted). And while Ordaz argues that the officers initiated the
traffic stop because they suspected his involvement in unrelated
criminal activity, not a traffic violation, the officers’ subjective
motivations for initiating the stop “play no role in ordinary,
probable-cause Fourth Amendment analysis.” See Whren, 517 U.S.
at 813.
Second, the district court did not err by finding that police
had probable cause to search Ordaz’s car. The automobile
exception to the Fourth Amendment’s warrant requirement
“allows the police to conduct a search of a vehicle if (1) the vehicle
is readily mobile[,] and (2) the police have probable cause for the
search.” United States v. Lindsey, 482 F.3d 1285, 1293 (11th Cir. 2007).
Ordaz does not dispute that his car, which he had been driving
before the officers initiated the traffic stop, was operational. See
United States v. Watts, 329 F.3d 1282, 1286 (11th Cir. 2003) (stating
that a car is readily mobile where it is operational).
The police obtained probable cause to search Ordaz’s car
after they initiated the traffic stop and ordered him out of the car.
See Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977) (“[O]nce a
motor vehicle has been lawfully detained for a traffic violation, the
police officers may order the driver to get out of the vehicle
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without violating the Fourth Amendment’s proscription of
unreasonable searches and seizures.”). Detectives testified at the
suppression hearing that they were aware prior to the traffic stop
that Ordaz was a felon, and as Ordaz exited his car, Detective Davis
(1) saw a firearm between the driver’s seat and center console;
(2) smelled marijuana; and (3) saw a marijuana cigarette in the
driver’s door. Based on Ordaz’s status as a felon and the presence
of a firearm, odor of marijuana, and a marijuana cigarette in the
car, the police had probable cause to search the car. See United States
v. Delva, 922 F.3d 1228, 1243 (11th Cir. 2019) (stating probable cause
exists to perform a warrantless search of a car “when there is a fair
probability that contraband or evidence of a crime will be found in
the vehicle[.]” (quotation marks omitted)).
Because the traffic stop and search of Ordaz’s car were
proper under the Fourth Amendment, there was no error in the
district court’s denial of Ordaz’s motion to suppress evidence
obtained as a result of that stop and search.
III. SCOPE OF CROSS-EXAMINATION
On appeal, Ordaz argues that the district court
impermissibly restricted his cross-examination at trial of Detective
Thames regarding the circumstances leading to the traffic stop.
Ordaz contends his lines of questioning of Detective Thames
would have shown that he did stop at the two stop signs and “would
have shown that law enforcement really didn’t have [probable]
cause” for the traffic stop that led to the search of his car and arrest.
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We review a defendant’s claim that the district court
impermissibly limited the scope of cross-examination for a clear
abuse of discretion. United States v. Maxwell, 579 F.3d 1282,
1295 (11th Cir. 2009).
A district court’s discretion to limit cross-examination is
restricted by a criminal defendant’s right under the Sixth
Amendment’s Confrontation Clause to cross-examine the
government’s witnesses. Id. Still, a defendant “is entitled only to
an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever
extent, the defendant might wish.” Id. at 1296 (quotation marks
omitted). The information the defendant seeks to elicit must be
relevant. Id.
Here, the district court already determined after a
suppression hearing that the police had probable cause to initiate
the traffic stop. As explained above, the district court committed
no error in that determination. The legal issue of probable cause
for the traffic stop was not a question of fact at trial for Ordaz to
re-litigate and for the jury to re-determine. See Bretti v. Wainwright,
439 F.2d 1042, 1047 (5th Cir. 1971) (noting the “well-established rule
that it is for the court, not the jury, to decide whether evidence has
been illegally obtained”); Burris v. United States, 192 F.2d 253,
254-55 (5th Cir. 1951) (“[T]he Court correctly ruled that the legality
of the search warrant and the evidence obtained as a result of its
execution was a matter of law for its determination. It was
therefore entirely proper that the Court prohibit cross-examination
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[at trial] of the witnesses upon this question when before the
jury[.]”).1
Further, Ordaz was able to ask questions of Detective
Thames about the traffic stop itself, the search of his car, the
collection of evidence, and Detective Thames’s police report about
the stop and evidence seized.
In contrast, Ordaz’s challenged lines of questioning at trial
all concerned the underlying probable cause basis for the stop, such
as how long the police followed Ordaz before initiating the traffic
stop, whether they radioed other deputies for help, the number of
patrol deputies in the county’s sheriff’s office, whether there were
opportunities to initiate the stop sooner, and the visibility of the
emergency lights on Detective Kruse’s police car that initiated the
stop. Accordingly, because the district court had already
determined probable cause and the validity of the stop and search,
we discern no error in the district court’s limitation of Ordaz’s
cross-examination of Detective Thames.
Finally, we recognize there is a presumption in favor of “free
cross-examination on possible bias, motive, ability to perceive and
remember, and general character for truthfulness.” Maxwell,
579 F.3d at 1296 (quotation marks omitted). For the first time in his
reply brief, Ordaz argues that the disputed lines of questioning
1 Decisions by the former Fifth Circuit handed down before October 1,
1981 are binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206,
1207 (11th Cir. 1981).
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were meant not merely for probable cause, but were to test
Detective Thames’s credibility generally. A party normally forfeits
issues not timely raised in his initial brief. See United States v. Smith,
416 F.3d 1350, 1352 & n.1 (11th Cir. 2005). But even if Ordaz had
raised this issue in his initial brief, he was not entitled to “unlimited
inquiry.” See Maxwell, 579 F.3d at 1295-96 (quotation marks
omitted). The jury was able to adequately weigh Detective
Thames’s credibility given his other testimony on
cross-examination about the ultimate traffic stop, the number of
officers participating in that stop, the search of Ordaz’s car and the
collection of evidence, and the report he wrote about the stop and
the evidence seized. Ordaz does not explain how a reasonable jury
would have received a significantly different impression of
Detective Thames’s credibility had Ordaz been able to pursue
further the additional lines of questioning. See id.
Therefore, the district court did not abuse its discretion in
limiting Ordaz’s cross-examination of Detective Thames.
IV. SUFFICIENCY OF THE EVIDENCE ON COUNT 2
Ordaz also contends that the district court erred in denying
his motions for a judgment of acquittal on Count 2, arguing that
the government’s evidence was insufficient to show that he
possessed a firearm in furtherance of a drug-trafficking crime.
We review de novo the denial of a motion for judgment of
acquittal based on the sufficiency of the evidence. United States v.
Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). In reviewing the
sufficiency of the evidence, we consider whether a reasonable trier
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of fact, viewing the evidence in the light most favorable to the
government, could find the defendant guilty beyond a reasonable
doubt. Id.
Federal law prohibits the possession of a firearm in
furtherance of a drug-trafficking crime. 18 U.S.C. § 924(c)(1)(A).
The “in furtherance requirement demands that the government
establish that the firearm helped, furthered, promoted, or
advanced the drug trafficking.” United States v. Dixon, 901 F.3d
1322, 1340 (11th Cir. 2018) (quotation marks omitted). To do so,
the government must establish some nexus between the firearm
and the drug selling operation, including by showing the kind of
drug activity being conducted, the accessibility of the firearm, the
status of the possession (legitimate or illegal), whether the firearm
is loaded, and the proximity of the firearm to the drugs or drug
profits. Id. at 1340-41.
Intent to distribute can be shown by circumstantial evidence,
such as the amount of drugs found and the presence of other items
commonly used for distribution, including scales and money near
the drugs. United States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989);
United States v. Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008) (noting
that cash, plastic bags, and the lack of paraphernalia used to
consume drugs can also show the intent to distribute).
Here, after record review, we conclude ample evidence
established Ordaz possessed a firearm in furtherance of a
drug-trafficking crime. First, the government’s evidence showed
that Ordaz possessed fentanyl with the intent to distribute it,
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including (1) 2.5 grams of fentanyl found in the driver’s side door;
(2) several sandwich- and dime-sized plastic bags, some of which
contained fentanyl; (3) two digital scales; and (4) $588 in cash.
See Poole, 878 F.2d at 1392; Mercer, 541 F.3d at 1076.
Second, the government’s evidence tied the firearm to
Ordaz’s drug trafficking, including (1) the firearm was accessible to
Ordaz, as it was found between the driver’s seat and center console;
(2) the firearm was in close proximity to the fentanyl, which was
found in the driver’s side door; (3) Ordaz was a felon and his
possession of the firearm was illegal; (4) the firearm was loaded;
and (5) Detective Petta’s testimony that drug dealers often carry
firearms to protect drugs, proceeds, and themselves. See Dixon,
901 F.3d at 1341.
While Ordaz testified that he never sold fentanyl, the
fentanyl was for his personal use, and the firearm was only for
self-protection, the jury was free to discredit his testimony and
conclude that the opposite was true. See United States v. Brown,
53 F.3d 312, 314 (11th Cir. 1995) (“[W]hen a defendant chooses to
testify, he runs the risk that if disbelieved the jury might conclude
the opposite of his testimony is true.” (quotation marks omitted)).
Further, given the corroborative evidence of his guilt outlined
above, Ordaz’s testimony may alone establish the highly subjective
element of his intent to possess a firearm to further a
drug-trafficking crime. See id. at 314-15.
Viewing the evidence in the light most favorable to the
verdict, a reasonable jury could conclude that Ordaz intended to
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possess a firearm in furtherance of a drug-trafficking offense.
Accordingly, we affirm the denial of Ordaz’s motions for a
judgment of acquittal on Count 2.2
V. CONCLUSION
For the above reasons, we affirm the district court’s denial
of Ordaz’s motion to dismiss Count 3, motion to suppress, and
motions for a judgment of acquittal on Count 2, as well as its
limitation of Ordaz’s cross-examination of Detective Thames.3
AFFIRMED.
2 On appeal, Ordaz does not raise any legal or factual challenges to his sentence
on any of his convictions.
3 We grant Ordaz’s motion to file a corrected reply brief. The brief attached
to his motion simply restates the correct amount of fentanyl found in his pos-
session.
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