United States v. Ivan Curbelo, 726 F.3d 1260

Background

Defendant Ivan Curbelo supervised and participated in an indoor marijuana growing operation (multiple grow houses) run by Jose Diaz; Government evidence tied him to numerous harvests yielding well over 1,000 plants.
DEA used warrantless GPS tracking on vehicles (and monitored certain cell phones); court authorization was obtained for wiretapping Diaz’s cellular phone.
At trial the Government played Spanish-language wiretap recordings and provided English-language transcripts prepared by an unidentified translator; Diaz (a participant) authenticated and vouched for the transcripts’ accuracy at trial.
Defendant was convicted by a jury of conspiracy to manufacture/possess marijuana with intent to distribute (charged with 1,000+ plants and 100+ kg) and the substantive manufacturing/possession offense; sentenced to concurrent 120-month terms and a joint forfeiture money judgment of $850,000.
On appeal Curbelo raised five claims: Fourth Amendment challenge to GPS evidence, ineffective assistance for failing to move to suppress GPS evidence, insufficiency of evidence for the 1,000+ plant conspiracy enhancement, Confrontation Clause challenge to translated transcripts, and right to jury determination of forfeiture amount. The Eleventh Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of GPS tracking evidence (Fourth Amendment)	Gov’t: tracking evidence admissible; defendant waived challenge by not moving to suppress pretrial	Curbelo: Jones establishes GPS tracking is a search; plain-error review should apply	Waiver under Rule 12(e); no good cause shown to excuse failure to file suppression motion; claim forfeited on appeal
Ineffective assistance for failing to seek suppression	Gov’t: record doesn’t show DEA tracked Curbelo’s own vehicle/phone; claim belongs in §2255	Curbelo: counsel was ineffective for not moving to suppress GPS evidence	Court declines to resolve on direct appeal; record insufficient to show counsel ineffective; claim better raised in §2255
Sufficiency of evidence for conspiracy involving 1,000+ plants (sentencing enhancement)	Gov’t: jury found quantity; review under Jackson standard	Curbelo: jury findings insufficient or verdict form flawed/mixed statutory provisions	Under Alleyne the drug-quantity element must be found by jury; viewing evidence in light most favorable to gov’t, sufficient evidence supports 1,000+ plants finding; no plain error in verdict form or prejudice shown
Confrontation Clause re: translated transcripts	Curbelo: anonymous translator’s implicit certification is testimonial hearsay; defendant had right to confront translator	Gov’t: Diaz authenticated transcripts and testified about accuracy; transcripts were admissible through him	Translator’s implicit statements are testimonial, but Diaz —a participant who independently reviewed recordings—testified to accuracy and was cross-examinable; admission did not violate Confrontation Clause
Jury determination of forfeiture money judgment	Curbelo: Rule 32.2 entitles defendant to jury determination of forfeiture amount	Gov’t: Rule 32.2 requires jury only for specific-property forfeiture if requested; money judgments are determined by court	Rule 32.2(b)(5) applies only to specific property; court, not jury, determines amount of a personal money-judgment forfeiture; no jury right to decide money-judgment forfeiture

Key Cases Cited

United States v. Jones, 132 S. Ct. 945 (2012) (attachment/use of GPS on vehicle is a Fourth Amendment search)
Griffith v. Kentucky, 479 U.S. 314 (1987) (new rules apply retroactively on direct review only for preserved objections)
Alleyne v. United States, 133 S. Ct. 2151 (2013) (any fact that increases mandatory minimum is an element for the jury)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
Blakely v. Washington, 542 U.S. 296 (2004) (clarifies statutory-maximum concept for sentencing facts)
Harris v. United States, 536 U.S. 545 (2002) (prior rule allowing judge-found facts to trigger mandatory minimums was overruled by Alleyne)
Booker v. United States, 543 U.S. 220 (2005) (sentencing guidelines and judge factfinding within statutory maximum)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial hearsay absent prior opportunity for cross-examination)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (certificates of analysis are testimonial and require the analyst’s availability for cross-examination)
Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) (admission of a lab certificate through a surrogate witness violates the Confrontation Clause)