USA v. Luis Raul Vicente Fonseca

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13152
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS RAUL VICENTE FONSECA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20844-RNS-1
____________________
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2 Opinion of the Court 22-13152
Before N EWSOM, BRANCH, and G RANT, Circuit Judges.
PER CURIAM:
Luis Raul Vicente Fonseca appeals his conviction for
possession and distribution of child pornography. He argues that
the district court erred three times: by denying his motion to
suppress evidence obtained from a forensic search of his
cellphones, by denying his motions to dismiss on speedy trial
grounds, and by denying his motion for a new trial based on the
government’s failure to provide him Jencks Act material. We find
no error in the district court’s rulings and therefore affirm
Fonseca’s conviction.
I.
On December 11, 2019, a Customs and Border Protection
officer stopped Luis Fonseca at Miami International Airport as he
entered the country via a flight from Panama. Department of
Homeland Security officials had earlier begun an investigation of
Fonseca after receiving a tip from the National Center for Missing
and Exploited Children that somebody had downloaded over one
thousand files containing suspected child pornography to a Yahoo
account registered in his name. Agents searched Fonseca and his
luggage, discovering three cellphones.
Fonseca informed the customs officer who took possession
of these phones that he was an attorney in Venezuela. But he could
not provide any details regarding his law practice, which led the
officer to doubt the veracity of this claim. Even so, Homeland
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22-13152 Opinion of the Court 3
Security internal directives required customs officers to contact an
associate assistant chief counsel or U.S. Attorney before searching
information that might be subject to attorney-client privilege.
Here though, investigators did not make such contact; they did,
however, consult in-house agency counsel about Fonseca’s
privilege claims.
Invoking its border search authority, a Homeland Security
analyst performed an initial forensic search of these cellphones.
This initial search was limited to images and video to avoid
reviewing any text communications in the phones, which agency
counsel had advised was the likeliest place any attorney-client
privileged material would be. The search revealed over one
thousand child pornography files across the three phones.
Following this initial search, Homeland Security obtained a
search warrant and established a privilege filter team in
coordination with the U.S. Attorney’s Office. No privileged
information or any evidence substantiating Fonseca’s claim that he
was an attorney was ever discovered during the more complete
search that followed.
Fonseca was indicted on two counts of possessing and
distributing child pornography. Due to numerous trial
continuances granted by the district court—some on Fonseca’s
motion, some on joint motion by Fonseca and the government,
and the rest by the court sua sponte—over two years passed
between Fonseca’s January 2020 arraignment and the beginning of
his trial in August 2022. One important factor—in March of 2020,
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4 Opinion of the Court 22-13152
national and international authorities declared that the outbreak of
Covid-19 constituted a pandemic, prompting the closure of many
institutions. See United States v. Dunn, 83 F.4th 1305, 1307 (11th Cir.
2023). The Chief Judge of the Southern District of Florida issued
eleven administrative orders between 2020 and 2021, which
automatically continued all jury trials between March 16, 2020, and
July 19, 2021. See Administrative Order 2020-18, S.D. Fla. (March
13, 2020); Administrative Order 2021-65, S.D. Fla. (July 8, 2021).
Some jury trials resumed in a limited fashion between July 19 and
September 6, 2021. Administrative Order 2021-65, S.D. Fla. (July
8, 2021). The orders also purported to stop the clock on all Speedy
Trial Act calculations during this entire period. Id.
Before trial, Fonseca moved to suppress all evidence
obtained from the search of his cellphones, arguing that a forensic
cellphone search without reasonable suspicion was not justified by
the border search exception to the warrant requirement, and that
Homeland Security had failed to follow its internal directives and
establish a filter team before searching phones that could have
contained privileged material. Fonseca also twice moved to
dismiss his criminal indictment before trial, arguing that the
government had violated the Speedy Trial Act via excessive delay.
The district court denied these motions.
After a two-day trial, a jury found Fonseca guilty on both
counts. But following the verdict, the government discovered a
problem. It had called Special Agent Pablo Llabre, the lead case
agent on Fonseca’s investigation, to testify regarding the National
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22-13152 Opinion of the Court 5
Center for Missing and Exploited Children tip and the contents of
Fonseca’s phones. Llabre had also earlier testified before the grand
jury, but the government had not provided Llabre’s grand jury
testimony to the defense before trial, as required by the Jencks Act
and the district court’s scheduling order. The government
provided the missing material to the defense after the conclusion
of the trial when it discovered the error. Fonseca moved for a new
trial on the grounds that the government’s failure to turn over
Jencks Act material related to Agent Llabre’s testimony had
prejudiced Fonseca’s defense. The district court denied this
motion. Fonseca appeals.
II.
We review a denial of a motion to suppress under a mixed
standard of review. We review factual findings for clear error,
construing the evidence in the light most favorable to the
government, and legal conclusions de novo. United States v. Whyte,
928 F.3d 1317, 1327 (11th Cir. 2019).
We review whether the government violated a defendant’s
speedy trial rights under either the Speedy Trial Act or the Sixth
Amendment under a mixed standard of review. We review de
novo the district court’s denial of a motion to dismiss based on a
violation of the Speedy Trial Act and for clear error the court’s
factual determinations as to excludable time. Dunn, 83 F.4th at
1314. A district court’s decision to grant or deny an ends-of-justice
continuance under the Act is reviewed for an abuse of discretion.
Id. We review a district court’s legal conclusions regarding the
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6 Opinion of the Court 22-13152
constitutional right to a speedy trial under the Sixth Amendment
de novo and its factual findings for clear error. United States v. Oliva,
909 F.3d 1292, 1301 (11th Cir. 2018).
We review the denial of a motion for a new trial based on
an alleged Jencks Act violation for abuse of discretion. United States
v. Naranjo, 634 F.3d 1198, 1206 (11th Cir. 2011). A new trial is not
warranted if the Jencks Act violation is harmless. United States v.
Jones, 601 F.3d 1247, 1266 (11th Cir. 2010).
III.
A.
Fonseca argues that the district court erred by denying his
motion to suppress the evidence obtained from the search of his
cellphones at Miami International Airport. He correctly admits
that his first argument for suppression—that forensic searches of
cellphones at the border still require individualized reasonable
suspicion—is foreclosed by this Circuit’s precedent. See United
States v. Touset, 890 F.3d 1227, 1232–37 (11th Cir. 2018).
Fonseca’s second argument is that the DHS agents searching
his phones violated the Fourth Amendment by failing to follow
their agency’s privilege procedures after Fonseca informed them
that he was an attorney in Venezuela and that the phones might
contain privileged material. But as this Court has explained in the
due process context, an agency’s failure to follow its own internal
operating procedures does not automatically result in a
constitutional violation. See Dacostagomez-Aguilar v. U.S. Att’y Gen.,
40 F.4th 1312, 1319 (11th Cir. 2022). It is true, as Fonseca argues,
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22-13152 Opinion of the Court 7
that we have previously blessed the use of filter teams as
sufficiently protective of Fourth Amendment rights. E.g., In re
Sealed Search Warrant & Application for a Warrant by Tel. or Other
Reliable Elec. Means, 11 F.4th 1235 (11th Cir. 2021). But that has
little bearing on whether DHS’s search of Fonseca’s cellphones
here was constitutional. Our approval of a particular filter
procedure does not imply that it is the only way an agency can
constitutionally search materials that may be privileged.
As the district court found, the precautions DHS took during
the search of Fonseca’s phones likely complied with DHS’s internal
directives for searches implicating purportedly privileged material.
But even if they hadn’t, Fonseca has not made any further showing
that the government violated his Fourth Amendment rights. The
government took adequate precautions to safeguard against
disclosing privileged material: the agents consulted with in-house
counsel about how to handle the phones given privilege concerns;
they limited their initial search to only pictures and videos, not text,
to avoid discovering any attorney-client communications; and they
obtained a warrant and assembled a filter team before more fully
examining the phones’ contents. And ultimately, no privileged
material was ever found. We thus find no error in the district
court’s denial of Fonseca’s motion to suppress.
B.
1.
Fonseca next argues that he was denied a speedy trial in
violation of both the Speedy Trial Act and the Sixth Amendment.
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8 Opinion of the Court 22-13152
We first consider his claim under the Speedy Trial Act, which
provides that the trial of a criminal defendant who pleads not guilty
must begin within seventy days of either the indictment being filed
or the defendant’s first appearance before a judicial officer,
whichever is later. 18 U.S.C. § 3161(c)(1). If the defendant is not
tried within that time, the district court must grant the defendant’s
motion to dismiss the indictment. Id. § 3162(a)(2).
The Act’s seventy-day period may be tolled for certain
statutorily enumerated reasons. See id. § 3161(h). Relevant here,
the duration of a continuance granted by the district court is
excluded from the calculation of the seventy days, but only “if the
judge granted such continuance on the basis of his findings that the
ends of justice served by” the continuance “outweigh the best
interest of the public and the defendant in a speedy trial.” Id.
§ 3161(h)(7)(A). The Act provides a series of factors for the district
court to consider when deciding whether the continuance serves
the ends of justice and requires the court to set forth its reasons for
its decision in the record. Id. § 3161(h)(7)(A)–(B). The district court
need not make its findings regarding an ends-of-justice continuance
contemporaneously with granting the continuance so long as the
findings are on the record by the time the court rules on the
defendant’s motion to dismiss for a speedy trial violation. United
States v. Ammar, 842 F.3d 1203, 1207 (11th Cir. 2016).
The Southern District of Florida’s administrative orders
related to the Covid-19 pandemic purported to toll all Speedy Trial
Act periods from March 16, 2020 through September 6, 2021 and
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22-13152 Opinion of the Court 9
set forth detailed ends-of-justice findings to that end. See
Administrative Order 2020-18, S.D. Fla. (March 13, 2020);
Administrative Order 2021-65, S.D. Fla. (July 8, 2021). In United
States v. Dunn, this Court declined to reach the question of whether
these blanket, district-wide administrative orders satisfied the
Speedy Trial Act on their own. See Dunn, 83 F.4th at 1315–16. Dunn
held instead that the continuances entered by the magistrate judge
in that case were sufficient to stop the speedy trial clock because
they cited the “fact that all grand jury sessions in the Southern
District were temporarily continued due to the COVID-19
pandemic.” Id. at 1317. Under the “COVID-19 pandemic
circumstances,” district courts “were not required to make more
case-specific, ends-of-justice findings, beyond the COVID-19
pandemic-related one, in order to comply with § 3161(h)(7)(A).”
Id.
Fonseca argues that the district court failed to adequately
state its findings why its continuances served the ends of justice on
the record. Adding the time represented by those continuances
back to the calculation, Fonseca argues, more than two years had
run on the speedy trial clock before his trial began. We disagree.
True, the district court’s continuance orders did not provide
extensive explanations for its ends-of-justice findings. But its orders
denying Fonseca’s motions to dismiss on speedy trial grounds
explained how its previous continuances served the ends of justice,
including by referencing the Southern District’s administrative
orders suspending jury trials during the pandemic. Because a court
may set out its ends-of-justice findings retroactively in this manner,
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10 Opinion of the Court 22-13152
the speedy trial clock was properly stopped for the duration of the
continuances. See Ammar, 842 F.3d at 1207; Dunn, 83 F.4th at 1318.
There was no Speedy Trial Act violation.1
2.
Moving on to Fonseca’s Sixth Amendment claim, that
Amendment guarantees criminal defendants the right to a speedy
trial. If a court finds a denial of this constitutional right, it must
vacate any conviction and sentence imposed and dismiss the
criminal indictment. United States v. Villarreal, 613 F.3d 1344, 1349
(11th Cir. 2010). While “compliance with the Speedy Trial Act
does not bar Sixth Amendment speedy trial claims, it will be an
unusual case in which time limits of the Speedy Trial Act have been
met but the Sixth Amendment right to a speedy trial has been
violated.” United States v. Schlei, 122 F.3d 944, 986 (11th Cir. 1997)
(alterations adopted and quotation omitted). In Barker v. Wingo,
the Supreme Court established a four-factor test to determine
whether a defendant’s constitutional, as opposed to statutory,
speedy trial rights were denied. 407 U.S. 514, 530 (1972). We weigh
1 Fonseca also argues that the district court violated 18 U.S.C. § 3174 by failing
to follow its requirements for declaring a judicial emergency, which would
have suspended the Speedy Trial Act period for up to 180 days. As the district
court explained, the Southern District of Florida never invoked the judicial
emergency provisions of 18 U.S.C. § 3174 during the Covid-19 pandemic.
Instead, it found good cause under 18 U.S.C. § 3161(h)(7)(A) to toll the speedy
trial period. See United States v. Dunn, 83 F.4th 1305, 1307–09 (11th Cir. 2023).
The district court’s continuances thus could not have violated § 3174, because
that provision was never active.
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22-13152 Opinion of the Court 11
(1) the length of the delay, (2) the reason for the delay, (3) the
defendant’s assertion of his right to a speedy trial, and (4) the actual
prejudice borne by the defendant. Id.; see Villarreal, 613 F.3d at
1350.
The first factor of this test establishes a threshold inquiry:
unless the defendant establishes that the delay between indictment
and trial was “presumptively prejudicial,” the remaining factors
will not be considered and his speedy trial claim will fail. Villarreal,
613 F.3d at 1350. Here, that standard is met. Because more than
one year passed between Fonseca’s indictment and his trial, the
delay was presumptively prejudicial, and we may proceed to the
remaining factors. Id. at 1351.
The second factor does not weigh against the government.
Fonseca argues that most of the delay was attributable to the
Covid-19 pandemic, rather than to any fault of Fonseca. We agree,
but the logic cuts both ways—the Covid-19 delay cannot be
attributed to any fault of the government either. An unforeseen
global health emergency is precisely the kind of “valid reason” out
of the government’s control that justifies appropriate delay. Barker,
407 U.S. at 531.
We have repeatedly found that the third factor—assertion of
the speedy trial right—does not weigh against the government
when a defendant knows of pending charges against him but delays
raising the speedy trial issue until a motion to dismiss. E.g., United
States v. Dunn, 345 F.3d 1285, 1296 (11th Cir. 2003); United States v.
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12 Opinion of the Court 22-13152
Hill, 622 F.2d 900, 909–10 (5th Cir. 1980).2 Here, Fonseca initially
waived his speedy trial rights, only re-asserting them for the first
time in a motion to dismiss about nineteen months after his arrest
and indictment. This alone makes it “difficult for him to prove that
he was denied a speedy trial.” Villarreal, 613 F.3d at 1355 (alteration
adopted and quotation omitted). Worse, Fonseca moved for
several continuances both before and after moving to dismiss on
speedy trial grounds—hardly the behavior of “a defendant
aggressively asserting his desire to be tried promptly.” United States
v. Frye, 489 F.3d 201, 212 (5th Cir. 2007); see United States v. Register,
182 F.3d 820, 828 (11th Cir. 1999). The third factor thus weighs
strongly against Fonseca.
Because the first three factors do not uniformly weigh
heavily against the government, Fonseca must show actual
prejudice on the fourth factor to succeed in showing a violation of
his constitutional right to a speedy trial. Villarreal, 613 F.3d at 1355.
We assess the prejudice suffered by the defendant in light of the
three interests protected by the speedy trial right: “(1) to prevent
oppressive pretrial incarceration; (2) to minimize anxiety and
concern of the accused; and (3) to limit the possibility that the
defense will be impaired.” Id. (quotation omitted). The last
interest is the most important. Id.
2 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) (en banc).
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22-13152 Opinion of the Court 13
Two of these three interests were not impaired by the delay
in Fonseca’s trial. While he may well have experienced anxiety and
concern awaiting his trial on child pornography charges, Fonseca
was neither subject to oppressive pretrial incarceration nor
hindered from assisting in his own defense. He was released on
bond and subject to house arrest for the majority of the pre-trial
period: from January 2020 to July 2022. His bond was revoked on
July 27, 2022, after the district court discovered that he lied during
a plea colloquy related to a proffered guilty plea that was later
withdrawn. Fonseca then was incarcerated for about one month
before the start of his trial on August 29. This sequence was not so
lengthy or oppressive as to implicate prejudice. See Kennedy v.
Superintendent Dallas SCI, 50 F.4th 377, 384 (3d Cir. 2022); United
States v. Hall, 551 F.3d 257, 272 (4th Cir. 2009). And Fonseca does
not argue at all that the delay hindered his defense—the most
important interest when considering actual prejudice. The fourth
Barker factor thus heavily weighs against Fonseca.
Because the first three Barker factors did not each weigh
heavily against the government and Fonseca did not prove actual
prejudice, we find that Fonseca’s constitutional speedy trial rights
were not infringed. See Oliva, 909 F.3d at 1306.
C.
Finally, Fonseca argues that the government’s failure to
provide him Jencks Act material warrants a new trial. The Jencks
Act provides that, on a defendant’s motion, the district court “order
the United States to produce any statement” of a witness called by
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14 Opinion of the Court 22-13152
the United States “in the possession of the United States which
relates to the subject matter as to which the witness has testified.”
18 U.S.C. § 3500(b). The purpose of this disclosure requirement is
to permit the defense to impeach the government’s witness during
cross-examination. United States v. Prieto, 505 F.2d 8, 11 (5th Cir.
1974). Both parties agree that the government violated the Act by
failing to disclose Agent Llabre’s grand jury testimony before trial.
But a mere failure of disclosure is not enough to merit a new trial.
Fonseca must also show that he was prejudiced. United States v.
Hamaker, 455 F.3d 1316, 1327 (11th Cir. 2006).
Fonseca’s main argument is that Llabre used the word
“upload” when he described to the grand jury how Fonseca saved
child pornography images and videos, but then used the word
“share” during his trial testimony. The government’s failure to
disclose Llabre’s grand jury testimony, he says, deprived him of the
ability to cross-examine Llabre about the difference, if any,
between those two words. But Fonseca had access to two other
documents which used the word “upload”: an affidavit from Llabre
and the report from the National Center for Missing and Exploited
Children that tipped off the police that Fonseca might possess child
pornography. The grand jury testimony was merely cumulative
because Fonseca could have cross-examined Llabre about
differences between the two words without it. That means the
government’s failure to disclose Jencks Act material was harmless.
See United States v. Valera, 845 F.2d 923, 928 (11th Cir. 1988).
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* * *
The district court correctly found that the government’s
search of Fonseca’s cellphones did not violate the Fourth
Amendment, that Fonseca’s speedy trial rights were not violated,
and that the government’s failure to disclose Jencks Act material
was harmless. We therefore AFFIRM Fonseca’s conviction.
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