United States v. Salinas

United States Court of Appeals
for the Fifth Circuit

No. 19-50936
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Reynaldo Salinas, also known as Reynaldo Salinas, Jr.,

Defendant—Appellant.

Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:17-CR-842-1

Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Reynaldo Salinas appeals his jury trial convictions for attempted
transfer of obscene material to a minor, see 18 U.S.C. § 1470, and attempted
coercion and enticement of a minor, see 18 U.S.C. § 2422(b), and his resulting
cumulative prison term of 180 months and cumulative supervised release

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
September 9, 2020

Lyle W. Cayce
Clerk
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No. 19-50936
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term of 10 years. Before trial, Salinas moved to suppress all the evidence
gathered by the Air Force Office of Special Investigations (AFOSI) in the
investigation that culminated in his arrest for the crimes of which he was
ultimately adjudged guilty. See F
ED. R. CRIM. P. 12(b)(3)(C). As pertinent
here, Salinas argued that the investigation violated the Posse Comitatus Act
(PCA), 18 U.S.C. § 1385. Pretermitting the question of a violation, the
district court ruled that suppression was not appropriate because Salinas
failed to demonstrate widespread and repeated violations of the PCA
sufficient to justify imposition of the exclusionary sanction he sought.
Salinas’s sole issue on appeal is whether the suppression ruling was
erroneous.
Salinas argues that the facts prove a violation of the PCA’s prohibition
against using the military to enforce civilian laws—including, in this case, the
federal statutes of conviction. In his view, exclusion of the evidence gathered
in the AFOSI investigation is required in order to discourage future violations
of the PCA, violations that he contends are repeated and widespread in the
military.
As the district court did, we assume without deciding that the AFOSI
violated the PCA in investigating Salinas. See Weaver v. Massachusetts,
137 S. Ct. 1899, 1911 (2017); United States v. Rodriguez, 523 F.3d 519, 525 (5th
Cir. 2008). We note that this court has consistently deferred formulation of
an exclusionary rule for a PCA violation when the question has arisen. See,
e.g., United States v. Mullin, 178 F.3d 334, 342-43 (5th Cir. 1999); United
States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986); United States v. Wolffs,
594 F.2d 77, 85 (5th Cir. 1979).
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Evidence will not be excluded because of a violation of the PCA unless
such violation is “‘widespread and repeated.’” Hartley, 796 F.2d at 115
(quoting Wolffs, 594 F.2d at 85). In Wolffs, this court stated that “should [it]
be confronted in the future with widespread and repeated violations of the
Posse Comitatus Act an exclusionary rule can be fashioned at that time.” 594
F.2d at 85. This court’s cautiousness in that regard is consonant with the
Supreme Court’s teaching that “the deterrence benefits of suppression”
must “outweigh its heavy costs.” Davis v. United States, 564 U.S. 229, 237
(2011); see Hudson v. Michigan, 547 U.S. 586, 591 (2006); United States
v. Leon, 468 U.S. 897, 906 (1984).
We decline Salinas’s invitation to infer repeated violations of the
PCA based on the events of this case taken together with seven court cases
that Salinas cites. As he did not raise this specific argument in the district
court, review is for plain error. See Puckett v. United States, 556 U.S. 129, 136
(2009). The plain error standard requires, in addition to showing that a
forfeited error was clear or obvious, i.e., not “subject to reasonable dispute,”
that the defendant show that the error affects his substantial rights. Puckett,
556 U.S. at 135; see United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009);
see also United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010). If the
defendant discharges his burden of showing a plain error, we have “discretion
to remedy the error”—discretion that will not be exercised, however, if the
error has no serious effect on “the fairness, integrity or public reputation of
judicial proceedings.” Puckett, 556 U.S. at 135 (internal quotation marks and
citation omitted).
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Our review of his brief reveals that Salinas points to at most five
incidences of PCA violations in the roughly 43-year period between 1974—
when United States v. Walden, 490 F.2d 372, 376-77 (4th Cir. 1974), Salinas’s
oldest cited case, was decided—and 2017, when the AFOSI investigated him.
But Salinas cites no authority that supports his notion that such few
incidences in such a considerable time span is what this court had in mind
when referring to widespread and repeated violations that would justify the
exclusionary sanction. See Hartley, 796 F.2d at 115. A claim that is novel and
“not entirely clear under the existing case authority” is “doom[ed] . . . for
plain error.” Trejo, 610 F.3d at 319. Moreover, whether exclusion based in
part on violations occurring many years ago is necessary is a proposition at
least subject to reasonable debate, given that the required analytical focus
includes consideration of the “the deterrence benefits of suppression” and
the social costs of an exclusionary sanction. Davis, 564 U.S. at 237; see Ellis,
564 F.3d at 377-78. And that debate does not favor Salinas, who has not
shown extenuating factors supporting exclusion, such as “systemic error or
reckless disregard,” in the instant case. Herring v. United States, 555 U.S.
135, 147 (2009). Consequently, we leave the ruling on the motion to suppress
undisturbed, and we AFFIRM Salinas’s convictions. See Puckett, 556 U.S.
at 135-36.
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