United States Court of Appeals, District of Columbia Circuit
May 11, 2017
from the United States District Court for the District of
Columbia (No. 1:13-cr-00262-5) (No. 1:13-cr-00262-2) (No.
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.
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.
Henderson, Circuit Judge
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.
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).
summer 2013, Rodriguezgil began investigating Lovo for a
different crime-conspiracy to rob a liquor
store.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.
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.
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
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.
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
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.
Prosecution, Conviction and Post-Trial Motion
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.
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). 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.
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.
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.
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.
Sorto and Eshetu raise a number of challenges on appeal. In
our view, only four merit discussion.
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.
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 ...