United States of America v. Gerardo Hernandez -Rivas

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4103
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
G ERARDO H ERNANDEZ -R IVAS ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 194—J.P. Stadtmueller, Judge.
____________
A RGUED S EPTEMBER 12, 2003—D ECIDED O CTOBER 30, 2003
____________
Before B AUER , K ANNE , and E VANS , Circuit Judges.
B AUER , Circuit Judge. Gerardo Hernandez-Rivas was
convicted of participating in a conspiracy to possess and
distribute cocaine. Hernandez-Rivas appeals, contending
that 1) evidence presented at trial was seized in violation of
the Fourth Amendment, 2) the trial court judge erred in
admitting testimony in violation of the Federal Rules of
Evidence, and 3) the defendant suffered from ineffective
assistance of counsel. For the reasons stated below, we af-
firm the district court.
I. Background
For approximately one-and-a-half years, Hernandez-Rivas
and several other Hispanic men living in Walworth County,

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2 No. 02-4103
Wisconsin were under an investigation by the Walworth
County Metro Drug Unit and the Drug Enforcement
Administration. The men were suspected of trafficking
drugs. The investigation included, among other things,
wiretaps of eighteen telephone conversations and twenty-
five controlled drug purchases. As a result of their efforts,
the Walworth County Metro Drug Unit learned that the
men were indeed trafficking cocaine, and were in possession
of at least one firearm and a large amount of cash.
On September 15, 2000, authorities learned that
Hernandez-Rivas was planning to leave the country. That
day, law enforcement officers pulled over the car in which
Hernandez-Rivas was a passenger. The stated reason for
the traffic stop was that the car had been traveling at sixty-
one miles per hour in a fifty-five mile per hour zone. After
the stop, Deputies Mulhollon and Kilpin searched the
vehicle with the driver’s permission. During that search
they discovered three .45 caliber bullets and an envelope in
the glove compartment that contained $25,000 in cashier’s
checks made out to “Gerardo Hernandez.”
The deputies then asked Hernandez-Rivas to step out of
the car and performed a pat-down search. Deputy
Mulhollon saw and felt a quantity of cash in Hernandez-
Rivas’ breast pocket. He asked Hernandez-Rivas what was
in his pocket, and Hernandez-Rivas replied that it was
$10,000. Deputy Mulhollon seized the cash and proceeded
to check for identification. When Deputy Mulhollon seized
Hernandez-Rivas’ wallet, he found and confiscated a falsi-
fied Wisconsin identification card and $1,000 in cash.
Prior to trial, Hernandez-Rivas moved to suppress the
evidence seized at the time the vehicle was stopped. The
magistrate judge recommended that the district court deny
the motion. Hernandez-Rivas did not file an objection, and
the district court adopted the motion.

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No. 02-4103 3
During the course of the trial, the defendant objected to
the admission of two pieces of testimony on hearsay
grounds. The first came from the testimony of Deputy
Kilpin. Kilpin testified that during the course of the traffic
stop, the driver of the car, Jorge Luna, told Kilpin that he
had obtained the cashier’s checks earlier that day for
Hernandez-Rivas. The second objection came during the
testimony of a witness, Antonio Gomez, who stated that he
had a conversation with another man, Carlos Gonzalez, who
told Gomez that his cocaine supplier was “Gerardo.” Both
pieces of testimony were admitted over objection.
II. Discussion
A. Motion to Suppress Physical Evidence
Hernandez-Rivas waived his right to appeal the admis-
sion of the physical evidence seized during the traffic stop.
The general rule within the Seventh Circuit is that if a
party fails to file an objection with the district court, he or
she “waives the right to appeal all issues, both factual and
legal.” United States v. Brown, 79 F.3d 1499, 1503 (7th Cir.
1996) (quoting Video Views, Inc. v. Studio 21, Ltd., 797 F.2d
538, 539 (7th Cir. 1986)). The purpose of this rule is to
ensure the efficient workings of the district and appellate
courts. Absent a requirement that objections be filed in the
district court, all issues heard by a magistrate would be the
appropriate subject of appellate review. Thomas v. Arn, 474
U.S. 140, 147 (1985). The Supreme Court has noted that the
practical effect of this would be to “either force the court of
appeals to consider claims that were never reviewed by the
district court, or force the district court to review every
issue in every case . . . .” Id. Neither scenario would be an
efficient use of judicial resources. Id.
In this case, when the magistrate judge issued the
recommendation that defendant’s motion to suppress the

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4 No. 02-4103
physical evidence be denied, Hernandez-Rivas failed to file
an objection with the district court. Hernandez-Rivas ar-
gues that this case fits into the exception to the general
rule. Specifically, we have stated that the waiver rule
should not be applied if such an application would “defeat
the ends of justice.” United States v. Brown, 79 F.3d 1499,
1504 (7th Cir. 1996) (quoting Video Views Inc. v. Studio 21,
Ltd., 797 F.2d 538, 540 (7th Cir. 1986)). Within this circuit,
this exception has been applied in two cases. Once, in an
instance where an objection was filed, but the filing was
done outside of the ten-day window. See C&F Packing Co.,
Inc. v. IBP, Inc. 1997 WL 619848, *4 (N.D.Ill.1997) (noting
that “Pizza Hut’s objection was not ‘egregiously late’ and C
& F is not prejudiced . . . .”). The other instance was where
the magistrate judge recommended that the defendant’s
motion for substitute counsel be denied, and the attorney in
question failed to file the timely objection to preserve for
appeal the issue of his own removal. Brown, 79 F.3d at
1504-05.
Hernandez-Rivas argues that his case presents a situa-
tion in which a waiver would “defeat the ends of justice.”
Particularly, Hernandez-Rivas claims that he should not be
subject to waiver because he was denied effective assistance
of counsel, based only on his attorney’s failure to file this
particular objection in the district court. Should we adopt
Hernandez-Rivas’ reasoning, every appellant’s failure to file
the procedurally necessary objections would be excused, and
a party would never waive his or her right to appeal. Today
we decline the invitation to construe the exception to be so
broad that it swallows the rule.
At any rate, Hernandez-Rivas cannot prevail on his mo-
tion to suppress. He does not dispute that the car in which
he was riding was stopped while it was traveling in excess
of the posted speed limit. Traffic violations give police the
necessary probable cause to stop the vehicle. Atwater v. City

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No. 02-4103 5
of Lago Vista, 532 U.S. 318, 322 (2001). In such a situation,
the officer may arrest the driver and conduct a search
incident to the arrest that includes the person and the area
that is under the control of the person arrested. Chimel v.
California, 395 U.S. 752, 760 (1969). Hernandez-Rivas
protests that although the car was traveling in excess of the
speed limit, this was a pretextual reason for the stop, and
that the officers were merely following the orders of those
involved in the investigation. This argument fails; the
Supreme Court has explained that officers’ subjective
motivation for making a traffic stop is irrelevant. Wren v.
United States, 517 U.S. 806, 813 (1996) (noting that
“[s]ubjective intentions play no role in ordinary, probable-
cause Fourth Amendment analysis.”).
Similarly, the deputies were authorized to conduct a
pat-down search of Hernandez-Rivas under Terry v. Ohio,
392 U.S. 1 (1968). The doctrine in Terry allows an officer to
conduct a pat-down search if the officer has articulable facts
that led him or her to believe that the individual could be
armed or present a threat to others. Id. at 27. Here the
wiretaps had revealed that Hernandez-Rivas owned a
firearm, and was participating in cocaine trafficking, “a
crime infused with violence.”United States v. Gambrell, 178
F.3d 927, 929 (7th Cir.1999) (quoting United States v.
Stowe, 100 F.3d 494, 499 (7th Cir. 1996) cert. denied, 520
U.S. 1171 (1997)). These facts provided the deputies reason
to believe Hernandez-Rivas may be armed and present a
risk of harm, satisfying Terry.
The extent of the pat-down search was not inconsistent
with Terry. An officer may seize nonthreatening contraband
that is detected during a pat-down search. Minnesota v.
Dickerson, 508 U.S. 366, 373-74 (1993). The contraband
may be detected either because it is in plain view or be-
cause the officer detected it by touch. Id. at 375-76. During
the course of the pat-down the deputies seized $10,000 cash

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6 No. 02-4103
from Hernandez-Rivas breast pocket and a false identifica-
tion card and $1,000 from his wallet. The $10,000 in his
breast pocket was visible to the deputy, and the deputy had
reason to believe that the money was proceeds of the drug
trafficking. The false identification and $1,000 came into
plain view when Deputy Mulhollon handcuffed Hernandez-
Rivas and checked his wallet for identification. Like the
$10,000, the deputy had reason to believe that these items
were also used to facilitate the drug trafficking. Neither of
these seizures is inconsistent with Terry or its progeny, and
thus the district court was correct in denying Hernandez-
Rivas’ motion to suppress the evidence.
B. Prejudicial Hearsay
Hernandez-Rivas challenges the admission of two pieces
of testimony at trial. In reviewing a district court’s eviden-
tiary ruling, we review for abuse of discretion; further, an
error will be reversed only if it had “a substantial influence
over the jury.” United States v. Smith, 230 F.3d 300, 307
(7th Cir. 2000). Hernandez-Rivas challenges both pieces of
testimony as inadmissible hearsay.
The first piece of testimony in question arose when
Antonio Gomez, a co-conspirator, testified that he had re-
ceived cocaine from Carlos Gonzalez. Gomez testified that
at one point he asked Gonzalez who was supplying him with
cocaine; according to Gomez, Gonzalez replied that he
received his cocaine from “Gerardo.” Hernandez-Rivas had
objected to this line of questioning, but the trial court
admitted the testimony as a statement by co-conspirators in
furtherance of a conspiracy. F ED . R. E VID . 801(d)(2)(E).
Hernandez-Rivas argues that this statement does not fall
within Federal Rule of Evidence 801(d)(2)(E) because it was
“mere chitchat” and was not done to further the conspiracy.
We have previously held, however, that conversations

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No. 02-4103 7
identifying actors within the conspiracy help to “confirm the
lines of command in the organization,” and in that way do,
in fact, further the conspiracy. United States v. Pallais, 921
F.2d 684, 688 (7th Cir. 1990). For this reason, Gomez’s
testimony was admissible.
The other piece of testimony was given by Deputy Kilpin,
regarding a conversation that he had had with the driver of
the car, Jorge Luna. Kilpin testified that when he asked
Luna about the origin of the $10,000 worth of cashier’s
checks, Luna replied that he had obtained the checks for
Hernandez-Rivas. Hernandez-Rivas objected the admissibil-
ity of this testimony, contending that it was hearsay.
Reviewing the district court’s decision for clear error, we
find that the testimony was indeed inadmissible hearsay. It
does not fall under any exception to the hearsay rule. As we
stated earlier, when an evidentiary error is made, it will
only be reversed if it affected the jury. Smith, 230 F.3d at
307. In determining the effect of the testimony, we will
consider: (1) the importance of the witness’s testimony in
the prosecution’s case; (2) whether the testimony was cum-
ulative; (3) whether other evidence corroborated or contra-
dicted the witness’s material testimony; and (4) the overall
strength of the prosecution’s case. United States v. Ochoa,
229 F.3d 631, 639-40 (7th Cir. 2000).
In this situation, the admission of the hearsay was
harmless error. The testimony linking Hernandez-Rivas to
the cashier’s checks was cumulative. The wiretaps had
revealed that Luna was working on behalf of Hernandez-
Rivas, and that he had been out that day acquiring the
requisite amount of cashier’s checks for him. The checks
themselves had Hernandez-Rivas’ name as the remitter.
When considered in light of the rest of the government’s
case against the defendant, the admission of this testimony
did not have “substantial influence over the jury.”

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8 No. 02-4103
C. Effective Assistance of Counsel
Hernandez-Rivas argues that because his attorney failed
to file an objection with the district court to the magistrate
judge’s recommendation to deny his motion to suppress the
physical evidence, he was denied his constitutionally pro-
tected right to effective assistance of counsel. We consider
such claims under the Strickland test. Strickland v.
Washington, 466 U.S. 668, 688-91 (1984). To prevail,
Hernandez-Rivas must show that his attorney fell below
objective standards of representation, and that such defi-
ciencies were prejudicial to the outcome of the trial. Id. In
requiring the defendant to show prejudice to the outcome of
the trial, the Supreme Court noted that “[t]he purpose of
the Sixth Amendment guarantee of counsel is to ensure
that a defendant has the assistance necessary to justify
reliance on the outcome of the proceeding.” Id. at 691-92
(emphasis added). In cases where an attorney’s mistake
resulted in the admission of evidence that would have oth-
erwise been suppressed, the outcome of the trial does not
become any less reliable. United States v. Jones, 152 F.3d
680, 688 (7th Cir. 1998 );United States v. Williams, 106 F.3d
1362, 1367 (7th Cir. 1997); Holman v. Page, 95 F.3d 481,
490-92 (7th Cir. 1996), cert. denied, 520 U.S. 1254 (1997).
This is such a case. As a result, it is not necessary for us to
determine whether Hernandez-Rivas’ attorney’s perfor-
mance was deficient. It is enough to note that whether
there was error or not, the outcome of this trial was no less
reliable for having heard the additional evidence. Lockhart
v. Fretwell, 506 U.S. 364, 368-70 (1993).
For these reasons, we A FFIRM .

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No. 02-4103 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-03

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