USA v. Darcy Piloto

Filing

Opinion issued by court as to Appellant Darcy Piloto. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12522
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20710-KMM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARCY PILOTO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 10, 2014)
Before TJOFLAT, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Darcy Piloto appeals his conviction and 235-month sentence for one count
of possession of a firearm and ammunition by a convicted felon, in violation of 18

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U.S.C. §§ 922(g)(1) and 924(e)(1). On appeal, Piloto first argues that the district
court violated his Sixth Amendment right to the assistance of counsel when it
allegedly required him to proceed pro se after he moved to dismiss his appointed
counsel and for the appointment of new counsel. Piloto contends that the district
court did not properly consider his motion to appoint new counsel, instead
“converting” his motion into a motion to proceed pro se. Second, Piloto argues
that the district court erred in characterizing his prior felony conviction under
Florida’s fleeing-by-boat statute, Fla. Stat. § 843.18(1), as a “violent felony” for
the purposes of the Armed Career Criminal Act (ACCA). He argues that his
conviction is distinguishable from vehicular flight, which we have determined to
be a “violent felony,” chiefly because the statute does not require that the boat be
motorized. Finally, Piloto contends that the district court erred by denying his
motion to suppress evidence, citing (1) the impermissible taint of information
obtained from his allegedly unlawful arrest and the subsequent search; and (2) the
omission of allegedly material, exculpatory information from the affidavit. The
affidavit included information from the protective sweep made by officers after
Piloto’s arrest, Piloto’s custodial interrogation, a prior victim’s description and
identification—in a photo array—of Piloto, and a tip from a confidential informant
(CI). Piloto asserts that the search warrant, excised of all tainted information and
augmented by the omissions, was insufficient to establish probable cause.
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I.
Pursuant to the Sixth Amendment, criminal defendants are entitled to the
assistance of counsel. United States v. Garey, 540 F.3d 1253, 1262 (11th Cir.
2008) (en banc). However, the Sixth Amendment “does not grant defendants the
unqualified right to counsel of their choice,” id. at 1263, and an indigent criminal
defendant does not have the right to “demand a different appointed lawyer except
for good cause.” Id. (internal quotation marks omitted). We define “good cause”
as “a fundamental problem, such as a conflict of interest, a complete breakdown in
communication or an irreconcilable conflict which leads to an apparently unjust
verdict.” Id. (internal quotation marks omitted). “In practical terms, then,
defendants who lack the means to hire a private attorney must either accept the
counsel appointed to represent them or represent themselves.” Id. at 1263–64.
A criminal defendant may waive his right to counsel, so long as he does so
intentionally and knowingly. Id. at 1263. “A district court’s conclusion that a
defendant’s waiver is valid—that it is knowing, voluntary, and intelligent—is a
mixed question of law and fact that we review de novo.” United States v. Kimball,
291 F.3d 726, 730 (11th Cir. 2002) (per curiam). A waiver of the right to
assistance of counsel should be clear and unequivocal. Faretta v. California, 422
U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975). We have interpreted Faretta to
instruct that a trial court ideally should hold a hearing to advise a criminal
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defendant on the dangers of proceeding pro se and make an explicit finding that the
defendant has chosen self-representation with adequate knowledge of the possible
consequences. Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir. 1986).
The inquiry must include questions directed to the defendant that ensure his
intelligent, knowing, and voluntary waiver of his right. Faretta, 422 U.S. at 835,
95 S. Ct. at 2541.
We have held that a criminal defendant may waive his right to counsel
through his conduct, even when his statements do not evidence a “clear and
unequivocal” waiver. Garey, 540 F.3d at 1264 (internal quotation marks omitted).
In Garey, we stated that, if a defendant rejects his court-appointed counsel, “a
district court does not compromise the defendant’s free choice by presenting him
with accurate information regarding his lawful choices and asking him to choose
between them.” Id. at 1265–66. Further, “when an indigent defendant rejects
competent, conflict-free counsel, he may waive his right to counsel by his
uncooperative conduct, so long as his decision is made with knowledge of his
options and the consequences of his choice.” Id. at 1266.
When “a district court conducts an inquiry into the merits of a criminal
defendant’s motion for new counsel, we review the district judge’s ruling for abuse
of discretion.” United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997).
We have determined a number of factors to consider during review, including “1)
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the timeliness of the motion; 2) the adequacy of the court’s inquiry into merits of
the motion; and 3) whether the conflict was so great that it resulted in a total lack
of communication between the defendant and his counsel thereby preventing an
adequate defense.” Id.
In this case, the district court did not violate Piloto’s Sixth Amendment
rights by denying his motion to appoint new counsel or by allowing him to proceed
pro se. Piloto did not establish good cause for the appointment of new counsel,
even though the district court allowed him to argue the merits of the motion for
over twenty minutes. Instead, the government explained that Piloto had conflated
the instant prosecution with related state-law charges which were being prosecuted
in state court and for which the federal public defender was not acting as counsel.
After his motion to appoint counsel was denied, Piloto waived his right to the
assistance of counsel through his repeated and adamant rejection of his existing
appointed counsel, even after the court clearly explained that his legal options
consisted only of proceeding with his appointed counsel or proceeding pro se.
II.
We review de novo whether a particular prior conviction is a “violent
felony” for the purposes of the ACCA. United States v. Canty, 570 F.3d 1251,
1254 (11th Cir. 2009).

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Section 4B1.4(a) of the Sentencing Guidelines provides that a defendant
who is subject to an enhanced sentence under 18 U.S.C. § 924(e) is an “armed
career criminal” subject to an offense level that is the greatest of (1) their
calculated base offense level under Chapters Two and Three of the Sentencing
Guidelines; (2) their offense level under U.S.S.G. § 4B1.1 for “career offenders”;
or (3) a default level of 33, barring the applicability of a higher level 34 if the
defendant used or possessed a firearm during a crime of violence or controlled
substance offense, or the firearm was of a certain type. U.S.S.G. § 4B1.4(a),
(b)(1)–(3).
Under § 924(e) of Title 18 of the United States Code, a defendant is subject
to a 15-year statutory minimum sentence where he violates § 922(g) and has three
distinct prior convictions for a violent felony, serious drug offense, or both. 18
U.S.C. § 924(e)(1). Section 924(e)(2)(B) defines a “violent felony” as:
any crime punishable by imprisonment for a term exceeding one
year . . . that–
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
18 U.S.C. § 924(e)(2)(B). The residual clause contained in § 924(e)(2)(B)(ii)
encompasses any crime in which “the risk posed . . . is comparable to that posed by
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its closest analog among the enumerated offenses.” James v. United States, 550
U.S. 192, 203, 127 S. Ct. 1586, 1594 (2007).
In determining whether a prior conviction qualifies as a violent felony, we
generally use a categorical approach, considering “the offense as defined by the
law, rather than considering the facts of the specific violation.” United States v.
Archer, 531 F.3d 1347, 1350 (11th Cir. 2008). Thus, in analyzing the nature and
risk of the offense, we consider the ordinary case to determine how the crime is
usually committed and do not inquire into the specific conduct of the particular
offender. United States v. Proch, 637 F.3d 1262, 1266 (11th Cir. 2011).
The statute in question in this case is Florida’s fleeing-by-boat statute, which
states, in relevant part:
It is unlawful for the operator of any boat plying the waters of the
state, having knowledge that she or he has been directed to stop such
vessel by a duly authorized law enforcement officer, willfully to
refuse or fail to stop in compliance with such directive or, having
stopped in knowing compliance with such a directive, willfully to flee
in an attempt to elude such officer.
Fla. Stat. § 843.18(1). The most closely analogous offense to the fleeing-by-boat
statute that we have considered to determine whether it qualifies for enhancement
under § 924(e) is vehicular flight.
In Sykes v. United States, the Supreme Court held that an Indiana conviction
for felony vehicle flight was a “violent felony” under the ACCA. 564 U.S. ___,
___, 131 S. Ct. 2267, 2277 (2011). That statute prohibited a person from “flee[ing]
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from a law enforcement officer after the officer has, by visible or audible means,
identified himself and ordered the person to stop,” and makes it a felony to do so if
“the person uses a vehicle to commit the offense.” Id. at ___, 131 S. Ct. at 2271
(quoting former Ind. Code § 35-44-3-3). In determining that the crime was a
violent felony, the Court said:
Risk of violence is inherent to vehicle flight. Between the
confrontations that initiate and terminate the incident, the intervening
pursuit creates high risks of crashes. . . . It is well known that when
offenders use motor vehicles as their means of escape they create
serious potential risks of physical injury to others. Flight from a law
enforcement officer invites, even demands, pursuit. As that pursuit
continues, the risk of an accident accumulates. And having chosen to
flee, and thereby commit a crime, the perpetrator has all the more
reason to seek to avoid capture.
Id. at ___, 131 S. Ct. at 2274. The Court also noted that “[s]erious and substantial
risks are an inherent part of vehicle flight.” Id. at ___, 131 S. Ct. at 2276.
We applied the Supreme Court’s reasoning in Sykes to Florida’s vehicular
flight statute in United States v. Petite, 703 F.3d 1290, 1294–97 (11th Cir.), cert.
denied, __ U.S. __, 134 S. Ct. 182 (2013). In Petite, we held that a Florida
conviction under § 316.1935(2) is categorically a violent felony under the ACCA
because there is an inherent risk of violence in using a vehicle to flee and elude a
police officer. Petite, 703 F.3d at 1296, 1300–01. Using a vehicle to flee shows a
“determination to elude capture,” in defiance of law enforcement, that “makes a
lack of concern for the safety of property and persons of pedestrians and other
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drivers an inherent part of the offense.” Id. at 1295 (quoting Sykes, 564 U.S. at
___, 131 S. Ct. at 2273). Beyond posing serious and substantial risks, we also
determined that the risks posed by simple vehicle flight are similar in degree of
danger to the risks of arson and burglary. Id. at 1295–96; Sykes, 564 U.S. at ___,
131 S. Ct. at 2274 (noting that vehicle flight actually “presents more certain risk as
a categorical matter than burglary”). We stated that “any form of intentional
vehicle flight from a police officer presents powerful risks comparable to those
presented by arson and burglary,” as “[t]he calculus also must take into account the
obvious fact that vehicle flight from a law enforcement vehicle—in direct defiance
of an officer’s orders—necessarily provokes a confrontational response from the
officer.” Petite, 703 F.3d at 1296. Perhaps most importantly, neither the statute at
issue in Petite nor that at issue in Sykes “ha[d] as an element anything related to
driving at a high speed or operating the vehicle in a reckless manner.” Id. at 1295.
Moreover, in Petite we held that “we are obliged to look beyond the driving
conduct of the offender alone” and consider risks emanating from all parties’
conduct, including those that present themselves “even after the pursuit has ended
and the vehicles have stopped moving.” Id. at 1296.
Here, the district court correctly concluded that Piloto’s violation of
Florida’s fleeing-by-boat statute constituted a violent felony. Essentially, Piloto
has argued that fleeing by boat can be materially distinguished from vehicular
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flight because vehicles are inherently capable of traveling at high speeds, placing
civilian bystanders and police giving chase at risk of serious bodily injury and
death, while boats may be propelled by, for example, oar and therefore may not be
capable of reaching speeds which would place anyone in danger. However, even
putting aside the fact that even some motor vehicles may be incapable of traveling
at dangerous speeds, our emphasis in Petite on the conduct of the pursuing officers,
during and even after the chase, minimizes the relevance to our inquiry of the
speed of which the instrumentality used to flee is capable. See Sykes, 564 U.S. at
__, 131 S. Ct. at 2273 (“Even if the criminal attempting to elude capture drives
without going at full speed . . . , he creates the possibility that police will . . .
exceed or almost match his speed or use force to bring him within their custody. A
perpetrator’s indifference to these collateral consequences has violent—even
lethal—potential for others.” (emphasis added)).
III.
“A district court’s denial of a motion to suppress is a mixed question of law
and fact.” United States v. Frank, 599 F.3d 1221, 1228 (11th Cir. 2010). “We
review factual findings for clear error, but we review the district court’s application
of the law to those facts de novo.” Id.
A.

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The Fourth Amendment protects the public from unreasonable searches and
seizures. U.S. Const. amend. IV. According to the exclusionary rule, the
prosecution may not introduce any evidence obtained as a result of a Fourth
Amendment violation. United States v. Noriega, 676 F.3d 1252, 1259 (11th Cir.
2012). However, under the independent source exception, “evidence obtained
from a lawful source that is independent of any Fourth Amendment violation is
admissible.” Id. at 1260. When a law enforcement officer bases a search warrant
in part on what she sees during an arguably unlawful entry, we look to a two-part
test to determine whether it meets the exception. Id. First, we excise from the
search warrant any information obtained during the illegal entry and determine
whether the remaining information supports probable cause. Id. If the non-excised
information supports probable cause, we then determine whether the “officer’s
decision to seek the warrant was prompted by what he had seen during the
arguably illegal entry.” Id. (internal quotation marks omitted).
On appeal, Piloto asserts that (1) his arrest, the subsequent sweep of his
home, and his custodial interrogation were unlawful; and (2) the search warrant
affidavit, when excised of the allegedly unlawfully obtained information, does not
support probable cause. 1 After excising such information, what remains in the

1

Piloto fails to make, and thus abandons, the argument regarding the second component
of the Noriega inquiry: that the decision to seek the warrant was prompted by the unlawful entry.
See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
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affidavit is the identification of Piloto’s residence, the victim’s identification of
Piloto in the photo array, and the information provided by the CI.
To make a showing of probable cause for a search warrant for a residence,
the affidavit must demonstrate a nexus between the premises and both the alleged
criminal activity and the defendant; it is not a requisite that the affidavit shows that
illegal activity took place at the residence. United States v. Kapordelis, 569 F.3d
1291, 1310 (11th Cir. 2009). Therefore, probable cause to search a home exists if
the affidavit contains evidence that the defendant possesses contraband that would
typically be kept in the home. United States v. Anton, 546 F.3d 1355, 1358 (11th
Cir. 2008). The affidavit must also show that probable cause exists when the
warrant is issued. United States v. Bervaldi, 226 F.3d 1256, 1264 (11th Cir. 2000).
Courts should consider time, “nature of the suspected crime (discrete crimes or
ongoing conspiracy), habits of the accused, character of the items sought, and
nature and function of the premises to be searched” when determining whether
probable cause exists at issuance—i.e., that it is not stale. United States v. Harris,
20 F.3d 445, 450 (11th Cir. 1994).
The affidavit established a nexus between Piloto and the residence because it
explicitly stated that he lived there. This information was ripe because, as the
affidavit makes clear, the officers learned of the location of his residence on the
day they applied for the warrant.
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The affidavit also established the requisite nexus between the alleged illegal
activity and the residence because the nature of the alleged crime—possession of a
firearm by a felon—demonstrated a fair probability that evidence of the crime
would be found in the residence. See Anton, 546 F.3d at 1358 (noting that felons
unlawfully in possession of a firearm would typically keep that firearm at home).
Further, the information establishing this nexus was not stale. While time is a
factor to be considered when assessing staleness, it is not dispositive, nor is there a
specific time limit. Bervaldi, 226 F.3d at 1264; see United States v. Hooshmand,
931 F.2d 725, 735–36 (11th Cir. 1991) (holding that 11-month-old information
was not stale because “[w]hen the alleged criminal activity is ongoing . . . , it is
unlikely that the passage of time will dissipate probable cause”). Unlawful
possession of a firearm is an ongoing crime, so “old” information is relevant to the
question of present probable cause. Additionally, unlike narcotics, firearms are not
consumable items; it would be reasonable to believe that Piloto continued to
possess his gun in his home for at least 13 months. Therefore, the affidavit
established probable cause even without the excised information.
B.
Probable cause may be called into question, and a defendant is entitled to a
hearing on the validity of a search warrant where (1) the affiant knowingly or
recklessly omits facts the defendant enumerates, and (2) “inclusion of the facts
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would have prevented a finding of probable cause.” United States v. Jenkins, 901
F.2d 1075, 1080 (11th Cir. 1990). In his brief, Piloto notes the omission from the
affidavit of (1) the role played by the CI in identifying Piloto; (2) the victim’s
erroneous description of Piloto; and (3) the circumstances surrounding the victim’s
identification of Piloto in a photo array. However, even if this information was
included, it would not have defeated probable cause.
First, Piloto does not explain why the CI’s identification of Piloto diminishes
the likelihood of finding probable cause, and we can discern no reason why it
would. In fact, the district court noted that it only served to further establish the
nexus among Piloto, his residence, and the evidence to be found. Second, though
the victim’s initial description of Piloto was not accurate, his later identification
combined with the CI’s tip quiets our concern regarding this point and establishes
Piloto’s identity. Third, the photo identification procedure was not improper.
Such an identification is not admissible if the procedure (1) is unduly suggestive;
and (2) “given the totality of the circumstances, created a substantial risk of
irreparable misidentification at trial.” Williams v. Weldon, 826 F.2d 1018, 1021
(11th Cir. 1987). The district court, however, “affirmatively [found] that the
photographic arrays that Det. Suarez utilized were objectively reasonable,” and
Piloto gives us no reason to disagree.
C.
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Piloto has not established that there was no probable cause to grant a search
warrant for his residence. Because that is the sole ground on which he challenges
the denial of his motion to suppress, we affirm the district court’s denial of the
motion.
IV.
Upon review of the entire record on appeal, and after consideration of the
parties’ appellate briefs, we affirm the judgment of the district court.
AFFIRMED.

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