594 F. App'x 822
5th Cir.2014Background
- On July 2, 2012, a 20‑year‑old Venegas was found asleep in bed with 13‑year‑old M.S.; M.S.’s father called police.
- Deputy Villegas touched Venegas’s phone at the scene and saw a cover‑screen photo of Venegas and M.S.; he then brought Venegas to the station with a sign‑language interpreter pending.
- At the station, Venegas gave written consent and the passcode to unlock his phone; officers found sexual photos and messages. After Miranda warnings and interpreter assistance, Venegas admitted sexual contact and knowledge that M.S. was 13; a warrant for arrest followed.
- Venegas was indicted under 18 U.S.C. § 2422(b) for using a phone/Internet to entice a minor; he moved to suppress the phone evidence and his statements; the district court denied suppression and excluded a proposed defense expert; jury convicted; sentence 121 months.
- On appeal Venegas challenged: (1) striking of a juror for cause, (2) admission of the cover‑screen photo (plain‑view/search), (3) scope of consent to search phone and Miranda for the search, (4) voluntariness/adequacy of Miranda waiver for his stationhouse statements, (5) exclusion of defense expert testimony, and (6) the court’s handling of a jury note.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Striking Juror No. 9 for cause | Court properly removed a juror who said he could not be fair | Venegas: juror did not firmly say he was biased and questioning was leading | Affirmed — district court did not abuse discretion; juror said he "couldn’t be fair" |
| Cover‑screen photo search at scene | Photo admissible under plain‑view | Venegas: officer manipulated phone so viewing was an unconstitutional search | Plain‑error review — even assuming error, admission harmless given abundant independent evidence; no reversal |
| Stationhouse phone search — scope of consent | Search within consent to investigate "what happened this morning" | Venegas: consent limited to messages from that morning; officer exceeded scope | Affirmed — objective‑reasonable scope included examining phone generally; no temporal limitation shown |
| Miranda warnings for phone search | Miranda required before custodial search of phone | Venegas: he was in custody and not Mirandized when consenting | Rejected — consent valid and Miranda warnings not required to validate a consent search |
| Voluntariness/adequacy of Miranda waiver for statements | Written warnings ineffective for hearing‑impaired; waiver not knowing/voluntary | Government: written warnings plus interpreter; signed written waiver; defendant understood | Affirmed — written warning and interpreter adequate; waiver knowing and voluntary |
| Exclusion of defense expert on hearing impairment | Expert would show hearing‑impaired comprehension deficits relevant to credibility/waiver | Venegas: testimony relevant to Miranda and voluntariness | Affirmed — court did not abuse discretion; proffered testimony not tied to elements and risked juror confusion |
| Jury note "We have a verdict." handling | Court should have disclosed/responded to note before accepting verdict | Government: no response necessary | Affirmed — no error in failing to disclose or respond |
Key Cases Cited
- United States v. Cooper, 714 F.3d 873 (5th Cir. 2013) (standard of review for striking juror for cause)
- United States v. Zavala, 541 F.3d 562 (5th Cir. 2008) (plain‑view limitations where officer had to manipulate phone)
- Riley v. California, 134 S. Ct. 2473 (2014) (general rule that police need a warrant to search digital information on cell phones)
- United States v. Rounds, 749 F.3d 326 (5th Cir. 2014) (elements of § 2422(b) and discussion of consent searches)
- United States v. Stevens, 487 F.3d 232 (5th Cir. 2007) (consent statements are not Fifth Amendment testimonial communications)
- Duckworth v. Eagan, 492 U.S. 195 (1989) (Miranda warnings sufficient if they touch all required bases)