United States v. Gonzalez, 70 F.3d 1236, 11th Cir. (1995)

70 F.
3d 1236
UNITED STATES of America, Plaintiff-Appellee,

v.
Martin GONZALEZ, Edwin Nunez, Defendants-Appellants.
No. 95-2059
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Dec. 20, 1995.
Thomas Bell, Corse Bell & Miller, Jacksonville, FL, Gonzalo Andux,
Jacksonville, FL, for Appellants.
Kathleen A. O'Malley, Tamra Phipps, Asst. U.S. Attys., Jacksonville, FL,
Charles L. Truncale, Asst. U.S. Atty., Jacksonville, FL, for Appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
This appeal originally involved two co-defendants, Martin Gonzalez and Edwin
Nunez, but we have severed the cases and issue separate opinions in each. This
opinion addresses only the appeal by Gonzalez of his conviction for conspiracy
to pass and possess counterfeit money, possession of counterfeit money, and
passing counterfeit money, under 18 U.S.C. Secs. 371 and 472. He raises two
issues. First, he contends the district court erred in denying his motion to
suppress evidence. Second, he contends the district court erred in not affording
him a two level offense reduction for acceptance of responsibility under the
United States Sentencing Guidelines.
I. The Facts
2
In the late hours of July 1 or early morning hours of July 2, 1994, a bartender at
a Daytona Beach nightclub received from a customer, John Starkie, a twentydollar bill, which the bartender suspected was counterfeit. Starkie was with
Martin Gonzalez when he passed the bill. While the bartender notified
management, Starkie and Gonzalez remained at the bar area. The bartender
pointed the two men out to her superiors. One of the managers directed Starkie
and Gonzalez to a back room of the nightclub.
At approximately 12:30 a.m. police officers were dispatched to the nightclub. In

the presence of an officer, the bartender identified Starkie as the customer who
had passed the counterfeit bill to her. The officer examined the bill and believed
it was obviously counterfeit because of its texture.
One of the officers asked Gonzalez and Starkie if they had any money and they
reached into their pockets and took out additional counterfeit bills. Shortly after
producing the counterfeit bills, the men were formally arrested and given a
Miranda warning. After that, several other counterfeit bills were found in the
nightclub's cash registers and brought to the back room.
Daytona Beach police then interviewed Gonzalez and Starkie separately at the
nightclub. Secret Service Special Agent Pritchard was called to the scene and
he also interviewed Gonzalez and Starkie. Before interviewing the men, Agent
Pritchard read each a Miranda warning. Starkie admitted that he knew the
twenty-dollar bill was counterfeit and that he had passed it, but he was reluctant
to disclose the source of the bills. Pritchard then allowed Starkie and Gonzalez
to speak with each other. After conferring with Gonzalez, Starkie disclosed that
the counterfeit bills came from an individual named Tony Garcia. Starkie
described Tony Garcia as a "Latino with a black ponytail." Both Starkie and
Gonzalez signed sworn statements, and Starkie led Agent Pritchard to Garcia's
residence. Tony Garcia turned out to be Edwin Nunez.
II. Procedure
6
A grand jury indicted Gonzalez, Starkie and Nunez on charges of conspiracy to

pass and possess conterfeit money, possession of counterfeit money, and
passing counterfeit money. Before trial, Gonzalez filed a motion in limine to
suppress physical evidence (the counterfeit bills seized from Gonzalez's person)
and statements. Gonzalez's motion claimed that the police lacked probable
cause to arrest, and reasonable suspicion to detain, him. The motion further
alleged that the police had ordered him to give them the counterfeit bills.
The magistrate judge consolidated Gonzalez's hearing with that of his two co-
defendants, Starkie and Nunez, both of whom also filed motions to suppress.
After four days of hearings [R11-155-7], the magistrate judge issued a report
and recommendation that Gonzalez's motion to suppress be denied. The district
court adopted the report and recommendation as to Gonzalez.
8
Gonzalez then attempted to enter a conditional guilty plea to preserve his right
to appeal the denial of his motion to suppress. The government opposed a
conditional plea. In response, Gonzalez waived his right to a jury trial. After a
bench trial, the district court found Gonzalez guilty of three counts of
possessing and passing counterfeit bills.
At sentencing, Gonzalez objected to his presentence report because it did not

recommend a two-level adjustment for acceptance of responsibility pursuant to
U.S.S.G. Sec. 3E1.1. The court overruled the objection, citing as grounds the
four-day suppression hearing. Gonzalez appeals his conviction, contending that
the district court erred in denying his motion to suppress, and that it was error
to deny him an acceptance of responsibility adjustment. We address each
contention in turn.
A. Denial of the Motion to Suppress Evidence

10
11
The district court denied Gonzalez's motion to suppress the counterfeit bills and
the statements he made to officers at the nightclub the evening of his arrest. We
review the district court's findings of fact on a motion to suppress only for clear
error, with the record being viewed in the light most favorable to the party
prevailing below (the government). United States v. Allison, 953 F.2d 1346,
1349 (11th Cir.1992). We review the district court's legal conclusions de novo.
Id.
12
The district court found that Gonzalez voluntarily emptied his pockets to reveal
counterfeit bills. Unless Gonzalez was unlawfully detained at the time he
produced those bills, they are admissible as evidence. The same is true of his
statements. Gonzalez contends that he was unlawfully detained at the time. He
argues that the officers lacked reasonable suspicion to detain him.
13
It is well settled that a police officer may detain a person under investigation
when the officer has a reasonable suspicion that the person is involved in
criminal activity. United States v. Tapia, 912 F.2d 1367, 1370 (11th Cir.1990).
Reasonable suspicion is determined from the totality of the circumstances.
United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d
1 (1989). Although this standard is less demanding than probable cause, the
Fourth Amendment requires that the officer have some minimal objective
justification for the stop. Id. at 7, 109 S.Ct. at 1585. "Such facts may be derived
from 'various objective observations, information from police reports, if such
are available, and consideration of the modes or patterns of operation of certain
kinds of lawbreakers.' " United States v. Williams, 876 F.2d 1521, 1524 (11th
Cir.1989) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690,
695, 66 L.Ed.2d 621 (1981)).
14
Gonzalez contends that the police did not have reasonable suspicion to detain
him because he was not identified as having passed a counterfeit bill; he was
merely present when Starkie passed a counterfeit bill. We have recognized that
a person's mere presence at the scene of a crime, without more, does not
support a finding of probable cause to arrest, e.g., Wilson v. Attaway, 757 F.2d
1227, 1238 (11th Cir.1985), but the issue before us is not probable cause to
arrest. The issue is reasonable suspicion to detain. The police did not detain
Gonzalez merely because he was present at the nightclub. Gonzalez was with
Starkie at the nightclub and was standing beside him when Starkie passed the
counterfeit bill. A person's proximity to a person whom officers have probable
cause to believe is committing a crime may be considered as a factor in
assessing reasonable suspicion. United States v. Sink, 586 F.2d 1041, 1047 (5th
Cir.1978); United States v. Silva, 957 F.2d 157, 159-61 (5th Cir.), cert. denied,
506 U.S. 887, 113 S.Ct. 250, 121 L.Ed.2d 182 (1992).
15
The officers were acting on more than an inchoate and unparticularized

suspicion here. See United States v. Worthington, 544 F.2d 1275, 1280 (5th
Cir.), cert. denied, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 72 (1977). We are
convinced that the district court properly applied the law to its factual findings
in deciding that the police had reasonable suspicion to detain Gonzalez for
investigation. The evidence voluntarily produced, and statements voluntarily
made, by Gonzalez during the lawful pre-arrest investigation were admissible
against him.
B. The Sentencing Guidelines Issue

16
Gonzalez also contends that the district court erred by refusing to reduce his
offense level for acceptance of responsibility under section 3E1.1 of the United
States Sentencing Guidelines. Section 3E1.1 provides that a defendant who
"clearly demonstrates a recognition and affirmative acceptance of personal
responsibility for his criminal conduct" may receive a two-level decrease in his
offense level. U.S.S.G. Sec. 3E1.1(a). We review the district court's
determination under section 3E1.1(a) for clear error. United States v. Carroll, 6
F.3d 735, 739 (11th Cir.1993). We have stated numerous times that "[t]he
district court is in a unique position to evaluate whether a defendant has

accepted responsibility for his acts, and this determination is entitled to great
deference on review." United States v. Pritchett, 908 F.2d 816, 824 (11th
Cir.1990).
17
Comment 2 to section 3E1.1 provides that "[t]his adjustment is not intended to

apply to a defendant who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse." Gonzalez maintains that he accepted
responsibility because, apart from his challenge to the admissibility of the
evidence, he did not testify and deny actual guilt, and he saved the court time
by: (1) offering a conditional plea (rejected by the government); (2) waiving
his right to a jury trial; and (3) stipulating to facts based upon transcripts of the
motion hearing.
18
Comment 2 to section 3E1.1 states that if a defendant elects to go forward with

trial, it is a "rare situation" when the defendant may nonetheless qualify for
acceptance of responsibility. Such a rare situation may exist when a defendant
goes to trial only to "preserve issues that do not relate to factual guilt." The
examples the comment gives of matters unrelated to factual guilt are
constitutional challenges to a statute and challenges to the applicability of a
statute to specific conduct. Those examples are further removed from
contesting "factual guilt" than is a challenge to the admissibility of the evidence
establishing factual guilt.
19
Gonzalez was charged with possessing and passing counterfeit twenty-dollar

bills. The dispositive evidence was the evidence he sought to suppress--the
counterfeit bills found in his pocket and his statements. This evidence was
sufficient, and perhaps necessary, to support his conviction. By challenging the
admissibility of the essential evidence against him, Gonzalez attempted to
avoid a determination of factual guilt and to thereby escape responsibility for
his crime. In view of the evidence, Gonzalez's only practical defense to the
charges was to challenge the admissibility of the seized counterfeit bills and his
statements. And he did just that. Accordingly, the district court concluded that
Gonzalez was not entitled to a reduction for acceptance of responsibility. Under
these circumstances, the district court's rejection of the acceptance of
responsibility reduction was not clear error.
20
Gonzalez cites United States v. Kimple, 27 F.3d 1409, 1413 (9th Cir.1994), for
the proposition that the district court, in determining a defendant's acceptance
of responsibility, cannot consider any constitutionally protected conduct. In that
case the defendant, like Gonzalez, filed a motion to suppress evidence, and
there was a hearing on that motion, which the defendant ultimately lost. The
Ninth Circuit said that "a defendant's exercise of [constitutional] rights at the
pretrial stage should not in and of itself preclude a reduction for timely
acceptance," and it held that the defendant was entitled to receive the
acceptance of responsibility reduction if he pleaded guilty before the
prosecution began meaningful trial preparations and before the district court
unnecessarily expended its resources. Id. The court expressly limited its
holding, however, stating:
21 decide only that given the facts of this particular case, the district court did not
We
inefficiently expend its judicial resources in ruling on the pretrial motions. We do
not attempt, however, to set forth specific examples in which the use of judicial
resources would preclude an additional one-point reduction; rather, such
determinations should be made on a case-by-case basis.
22
Id. at 1413 n. 4.
23
Kimple left the district courts of the Ninth Circuit with the ability to refuse an
acceptance of responsibility reduction when the district court has unnecessarily
expended its resources. Even if we were to adopt Kimple 's reasoning, refusal
of the sentencing reduction in this case would still be appropriate. The district
court conducted hearings on the defendants' motions to suppress for four days.
Even if only a portion of those four days was devoted to Gonzalez's motion, we
could not say that it was clear error for the district court to refuse to apply the
reduction. Moreover, Gonzalez never pleaded guilty. He required the district
court to expend additional resources conducting a bench trial. Thus, even if we
were to adopt the reasoning of Kimple, this case would be distinguishable.
24
The district court's consideration at sentencing of Gonzalez's efforts to put the

government to the test by fighting the essential evidence against him, and his
failure to unconditionally plead guilty, does not impermissibly punish Gonzalez
for exercising his constitutional rights. United States v. Henry, 883 F.2d 1010,
1011 (11th Cir.1989) ("Section 3E1.1 may well affect how criminal defendants
choose to exercise their constitutional rights. But 'not every burden on the
exercise of a constitutional right and not every encouragement to waive such a
right is invalid.' " (quoting Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S.Ct.
492, 493-97, 58 L.Ed.2d 466 (1978))). It was not clear error for the district
court to refuse to afford Gonzalez an acceptance of responsibility sentencing
reduction.
III. Conclusion
25
Gonzalez's conviction and sentence is AFFIRMED.

United States v. Gonzalez, 70 F.3d 1236, 11th Cir. (1995)

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70 F.

UNITED STATES of America, Plaintiff-Appellee,

At approximately 12:30 a.m. police officers were dispatched to the nightclub. In

A grand jury indicted Gonzalez, Starkie and Nunez on charges of conspiracy to

At sentencing, Gonzalez objected to his presentence report because it did not

A. Denial of the Motion to Suppress Evidence

The officers were acting on more than an inchoate and unparticularized

B. The Sentencing Guidelines Issue

district court is in a unique position to evaluate whether a defendant has

Comment 2 to section 3E1.1 provides that "[t]his adjustment is not intended to

Comment 2 to section 3E1.1 states that if a defendant elects to go forward with

Gonzalez was charged with possessing and passing counterfeit twenty-dollar

The district court's consideration at sentencing of Gonzalez's efforts to put the

Gonzalez's conviction and sentence is AFFIRMED.

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