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United States v. Eshetu

United States Court of Appeals, District of Columbia Circuit

July 25, 2017

United States of America, Appellee
v.
Yonas Eshetu, also known as Yonas Sebsibe, Appellant

          Argued May 11, 2017

         Appeals from the United States District Court for the District of Columbia (No. 1:13-cr-00262-5) (No. 1:13-cr-00262-2) (No. 1:13-cr-00262-1)

          Carmen D Hernandez, appointed by the court, argued the cause for the appellants. Mary E Davis, Christopher M. Davis and Anthony D Martin, all appointed by the court, were with her on briefs.

          Peter S. Smith, Assistant United States Attorney, argued the cause for the appellee. Elizabeth Trosman, Emory V. Cole and Karla-Dee Clark, Assistant United States Attorneys, were with him on brief.

          Before: Henderson, Kavanaugh and Millett, Circuit Judges.

          OPINION

          Henderson, Circuit Judge

         Karen LeCraft Henderson, Circuit Judge: Pablo Lovo, Joel Sorto and Yonas Eshetu were friends. On September 5, 2013, they met an undercover police officer at a Washington, D.C., storage facility in preparation for a robbery. But before departing for the robbery, the police arrested them. The three were tried by a jury and convicted of conspiracy. Lovo and Sorto were also convicted of using, carrying or possessing a firearm during a crime of violence. For the following reasons, we affirm the district court in all but one claim; that one claim is remanded.

         I. BACKGROUND

         The Plotted Robbery[1]

         At least twice in 2012 and 2013, defendant Lovo helped his friend, Jonathan Avila, obtain drugs to sell to "Santos." Unbeknownst to Lovo, however, Avila was cooperating with law enforcement and "Santos" was Miguel Rodriguezgil, an officer with the District of Columbia Metropolitan Police Department (MPD).

         During summer 2013, Rodriguezgil began investigating Lovo for a different crime-conspiracy to rob a liquor store.[2]The plan came into being over the course of several meetings. It began on August 13, when Lovo, Rodriguezgil and Avila met at a Washington, D.C., restaurant. There, Rodriguezgil asked Lovo about his experience with robbery and Lovo responded that he and his "crew" often robbed brothels. Rodriguezgil offered to obtain information about a potential robbery target. They parted ways, agreeing to meet in the days ahead.

         A second meeting followed on August 16. This time, Lovo met with Rodriguezgil and Janice Castillo, a special agent with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Castillo posed as a courier for a drug-trafficking organization. Disgruntled because the organization failed to pay her, Castillo proposed robbing its cocaine "stash house." Lovo expressed interest and, again, emphasized his crew's experience robbing brothels.

         Rodriguezgil and Lovo made plans to meet a third time and did so on August 24 at another Washington, D.C., restaurant. This time, Lovo was accompanied by his friend, defendant Sorto. Rodriguezgil told the two men that Castillo was meeting with another potential robbery crew in New York because she was worried about Lovo's crew's inexperience. Lovo protested and also volunteered to supply guns for the robbery, including a "TEC-9" semiautomatic pistol. Sorto interjected that he would be armed with a machete. The three continued to discuss the robbery's target and logistics and concluded their meeting with the understanding that Rodriguezgil was to inform the others once he received more information from Castillo.

         Rodriguezgil and Lovo spoke by telephone several days later. Rodriguezgil proposed meeting so that he could show Lovo a vehicle suitable for the robbery. They met on September 2. Lovo arrived in a Kia; Rodriguezgil in an SUV. Lovo examined it, including a secret compartment Rodriguezgil suggested could hide the guns and the two parted ways. The next time they would see one another was the day set for the robbery.

         On the evening of September 5, Rodriguezgil and Lovo met at a storage unit in Northwest Washington, D.C., outfitted to resemble a cocaine-processing facility. Rodriguezgil arrived in the same undercover vehicle as before; Lovo drove his Kia and was accompanied by Sorto, defendant Yonas Eshetu and two other men. Rodriguezgil removed a gun from his person, stored it in his vehicle's secret compartment and told Lovo to do the same. Lovo and Sorto then opened the Kia's trunk but did not retrieve any weapons from it. Instead, they manipulated a bag in the trunk and left it there. Lovo explained to Rodriguezgil that he intended to leave the guns in the Kia because they might use two vehicles in the robbery.

         The men then entered the storage facility and Rodriguezgil closed its door behind them. Once inside, Raul Cruz, Jr., another conspirator, demanded to see whether Rodriguezgil was concealing anything under his clothes. Rodriguezgil insisted they do the same and Cruz removed a large butcher knife and a shank from his person. Rodriguezgil again told them they were free to back out but they wanted to proceed. In Rodriguezgil's estimation, Eshetu assumed something of a leadership role, assigning his confederates specific tasks for the robbery. The meeting ended when Rodriguezgil opened the storage unit gate from within and waiting police officers arrested the defendants.

         The Prosecution, Conviction and Post-Trial Motion

         After the arrest, MPD Officer Jason Best drove the Kia to an MPD facility. There, he searched the car's interior but not its glove compartment or trunk. He recovered a bag and some black clothing. An MPD officer drove the car to an ATF facility where it was secured pending a second, more thorough search. After obtaining a warrant, an MPD officer searched the car on September 6 and recovered, among other items, a TEC-9 and other pistols, wire, ammunition, magazine clips, a facemask wrapper and two long machetes.

         On September 12, a grand jury indicted Lovo, Sorto and Eshetu on one count of conspiring to interfere with interstate commerce by robbery, see 18 U.S.C. § 1951, and a second count of using, carrying or possessing a firearm during a crime of violence and aiding and abetting that offense, see 18 U.S.C. §§ 2, 924(c).[3] Lovo and Sorto moved to suppress the physical evidence found in the Kia. The district court denied the motion, concluding that the men lacked a reasonable expectation of privacy in the car and that the police conducted the second search pursuant to a lawful warrant.

         Trial began on May 14, 2014. Rodriguezgil and Castillo testified for the government. During their testimony, the prosecution played excerpts-often in Spanish-from video and audio recordings of their conversations with the defendants. Each witness repeatedly described the excerpt's substance without providing a verbatim translation.

         Lovo also testified, offering a starkly different version of events. He asserted that the August 13 meeting was to discuss potential granite work for "Santos" (Rodriguezgil). But during that meeting, Rodriguezgil supposedly said his girlfriend had a proposed drug transaction she wished to discuss with Lovo. The men therefore arranged a time for Lovo to meet her. Although Lovo concedes the girlfriend-in truth, Castillo-proposed a robbery during their August 16 meeting, he claims to have told Rodriguezgil he was uninterested. But Lovo testified Rodriguezgil nevertheless asked Lovo to sell him weapons and he agreed.

         The jury returned its verdict on May 28, 2014. It found Lovo and Sorto guilty on both counts but Eshetu guilty only on the conspiracy charge. In March 2015-nearly ten months after the jury returned its verdicts-Lovo moved for a judgment of acquittal or a new trial, arguing, inter alia, entrapment, outrageous government conduct, selective prosecution and various arguments pertaining to 18 U.S.C. § 924(c), the firearm statute Sorto and Lovo were convicted of violating. The district court denied the motion, rejecting it as untimely and largely without merit.

         II. ANALYSIS

         Lovo, Sorto and Eshetu raise a number of challenges on appeal. In our view, only four merit discussion.

         Motion To Suppress

         The defendants challenge the district court's denial of their motion to suppress evidence removed from the Kia on September 5. They argue that Best's search-conducted, as it was, without a warrant-violated the Fourth Amendment. We consider the issue de novo, United States v. Holmes, 505 F.3d 1288, 1292 (D.C. Cir. 2007), and find no constitutional infirmity. The Fourth Amendment provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

         U.S. Const. amend. IV. "Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, th[e] [Supreme Court] has inferred that a warrant must generally be secured." Kentucky v. King,563 U.S. 452, 459 (2011). Nevertheless, this "usual requirement" comes "subject to a number of exceptions." Birchfield v. North Dakota, 579 U.S. ___, 136 S.Ct. 2160, 2173 (2016). One is the automobile exception. It permits the warrantless search of a car that is "readily mobile" so long as "probable cause exists to ...


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