United States v. Josue Vargas, 915 F.3d 417

915 F.3d 417

7th Cir.

2019

*1 Before W OOD , Chief Judge , and E ASTERBROOK and K ANNE , Circuit Judges .

E ASTERBROOK , Circuit Judge . Convicted of two cocaine oﬀenses, 21 U.S.C. §841(a)(1), Josue Vargas has been sen- tenced to 72 months’ imprisonment. His principal appellate argument is that the district judge should have suppressed packages of that drug seized from his truck.

Vargas rented a parking place for his truck in a lot that lacked assigned spaces. Agents in Ohio arrested Luis Hueter as he transported three kilograms of cocaine that, Hueter as- serted, he had purchased from Vargas the day before at his parked truck. Hueter described Vargas, the truck, and the lot. They immediately called agents in Illinois, who entered the lot by following someone through the gate. Approaching a truck that met Hueter’s description, the agents in Chicago sent a photo to the agents in Ohio; Hueter identiﬁed the truck as Vargas’s. A dog was called in and alerted to the odor of drugs. Agents then broke a window of the truck, opened the door, and found eight more kilos of cocaine.

Vargas contends that the agents’ and the dog’s entry into the lot violated his rights. He does not say that it was im- proper to break into the truck without a warrant; by the time the agents did this they had probable cause, based on Hueter’s statements plus conﬁrmation (from the photo and the dog) that they had the right truck. But, citing Florida v. Jardines , 569 U.S. 1 (2013), and United States v. Jones , 565 U.S. 400 (2012), Vargas observes that an invasion of property is as much within the Fourth Amendment as an invasion of pri- vacy, and he insists that when the agents entered the lot they lacked probable cause—and a parking lot is not a vehicle, so the agents could not beneﬁt from the automobile exception to the warrant requirement.

The argument is a dud, because Vargas neither owned the parking lot nor had a leasehold interest in any particular part of it. Vargas was entitled to park his truck in any open space but not to exclude anyone else. Many other people al- so parked there, and each could admit third parties. This is why agents normally do not need probable cause or a war- *3 rant to enter the vestibule of a multi-tenant building. See United States v. Correa , 908 F.3d 208, 221–22 (7th Cir. 2018).

The only person whose property interest the agents in- vaded was the lot’s owner, who isn’t complaining—and at all events an invasion of the owner’s property (or privacy) rights would not entitle Vargas to any remedy. Rights under the Fourth Amendment are personal; only someone whose own rights have been transgressed is entitled to relief. See, e.g., United States v. Payner , 447 U.S. 727 (1980); United States v. Sweeney , 821 F.3d 893, 900 (7th Cir. 2016). No more need be said about the search and seizure.

All of Vargas’s remaining arguments concern the conduct of the trial. According to Vargas, the judge upbraided his lawyer more often (and more sternly) than the prosecution’s lawyer and erred in admiiing or excluding evidence. The district court considered and rejected these arguments when denying Vargas’s motion for a new trial. 2016 U.S. Dist. L EXIS 99021 (N.D. Ill. July 27, 2016). Vargas hopes that we will ﬁnd the contentions stronger than did the district judge.

Vargas presents almost all of his argument in constitu- tional terms, asserting that the judge violated the Due Pro- cess Clause of the Fifth Amendment. He mentions Fed. R. Evid. 613 but in the main ignores both the Federal Rules of Evidence and the Federal Rules of Criminal Procedure. He does not maintain that any of these rules is unconstitutional to the extent it allowed the judge to proceed as he did; in- stead Vargas bypasses the rules in favor of the Constitution. Nor does he contend that the judge transgressed any super- visory rule laid down by the Supreme Court or by this court. It is, for him, the Constitution or nothing (the invocation of Rule 613 is so cursory that we need not discuss it), and the *4 Constitution at a high level of generality rather than any concrete rule of criminal procedure to be found in the Con- frontation Clause or anywhere else.

This is a hopeless strategy, because courts are obliged to consider statutory and rule-based arguments ahead of con- stitutional ones. See, e.g., New York Transit Authority v. Beazer 440 U.S. 568, 582–83 (1979). “Lawyers all too often invoke the Constitution as if it were a panacea and bypass seemingly mundane arguments based on statutes and regulations. Mimicking Gresham’s Law, ﬂabby constitutional generalities drive out sound legal points.” Magala v. Gonzales , 434 F.3d 523, 526–27 (7th Cir. 2005). “Why counsel should start with the Constitution rather than the statutes and regulations that govern [these] proceedings is beyond us. Non-constitutional arguments always come ﬁrst; constitutional contentions must be set aside until their resolution is unavoida- ble.” Rehman v. Gonzales , 441 F.3d 506, 508 (7th Cir. 2006). “Before taking up a constitutional issue, a federal court should satisfy itself that there is no available non- constitutional ground of decision.” There to Care, Inc. v. Commissioner of the Indiana Department of Revenue , 19 F.3d 1165, 1167 (7th Cir. 1994) (citing Spector Motor Service, Inc. v. McLaughlin , 323 U.S. 101, 105 (1944)). See also BrockeL v. Spo- kane Arcades, Inc ., 472 U.S. 491, 501 (1985).

We illustrate this by considering one of Vargas’s eviden- tiary arguments—the strongest one, as it seems to us, but one on which he has missed critical points.

During discovery, Vargas asked the prosecutor to identi- fy any expert witnesses and describe the nature of the ex- perts’ testimony. The prosecution made a reciprocal de- mand. One potential witness identiﬁed by the prosecution *5 was Joseph Raschke, who would testify about how infor- mation from cell towers could be used to locate Vargas and Hueter on the critical days. After the parties agreed to a stipulation about cell-site evidence, the prosecution told the judge that it would not call Raschke as a witness in its case- in-chief. When Vargas tried to call Raschke in his own case, the prosecutor objected, because Vargas had not disclosed Raschke as an expert for the defense or described the sub- jects of his testimony. The judge sustained the objection. Vargas now asserts that this was absurd—after all, the pros- ecutor had to know what Raschke would have said on the stand—and that absurd decisions must be unconstitutional.

Whether the judge erred depends not on the Due Process Clause but on Fed. R. Crim. P. 16(b)(1)(C), which provides that at the prosecution’s request any defendant who has made an equivalent demand for expert disclosure must “give to the government a wriien summary of any testimo- ny that the defense intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence … . This summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualiﬁcations”. Vargas did not do this about Raschke; the omission is why the district judge barred Vargas from calling Raschke at trial. And un- less the defense plans to call an expert, already designated by the prosecution, for exactly the maiers covered in the prosecutor’s disclosure, it can’t be called absurd (let alone unconstitutional) for the judge to enforce the Rule as wriien. Rule 16(b)(1)(C) thus sinks Vargas’s appellate argument un- less courts have read this Rule, despite its text, as inapplica- ble to defendants who want to call witnesses already dis- closed by the prosecutor.

We could not ﬁnd any decision holding that disclosure of an expert by the prosecutor relieves the defense of a duty to provide its own disclosure, if the defense wants to call that expert. Nor could we ﬁnd any decision in the other direction (that is, we couldn’t ﬁnd any decision holding that disclo- sure by the defense relieved the prosecutor of its duty to dis- close the testimony that the same expert would give if called by the prosecutor). The Rule is designed to ensure that each side knows what an expert’s testimony would cover. See, e.g., United States v. Bresil , 767 F.3d 124, 127 (1st Cir. 2014); United States v. Barile , 286 F.3d 749, 758 (4th Cir. 2002). The possibility that one side will take an expert in a direction diﬀerent from the other side’s planned destination aﬀords a good reason why each must identify the potential “witness’s opinions, the bases and reasons for those opinions”, no maier what the other side has disclosed.

Vargas has not addressed any of these subjects, because his brief does not mention Rule 16. When asked why at oral argument, Vargas’s counsel asserted that no one pays any aiention to this Rule, so he did not need to bother. That is a staggering assertion. The prosecutor paid aiention; that’s why an objection was made. The district judge enforced Rule 16 by sustaining the objection. And we enforce rules by in- sisting that counsel address rather than ignore them. “There is no general constitutional right to discovery in a criminal case, and Brady [ v. Maryland , 373 U.S. 83 (1963)] did not cre- ate one; as the Court wrote recently, ‘the Due Process Clause has liile to say regarding the amount of discovery which the parties must be aﬀorded … .’ Wardius v. Oregon , 412 U.S. 470, 474 (1973).” Weatherford v. Bursey , 429 U.S. 545, 559 (1977). Sanctions for violating discovery rules also generally are maiers for the rules or statutes. See Michigan v. Lucas , 500 *7 U.S. 145 (1991) (judge entitled to exclude evidence after de- fense failed to comply with a notice obligation). Only close aiention to Rule 16 might have oﬀered Vargas a chance to prevail.

None of Vargas’s other arguments requires discussion. We agree with him that the district judge should have been more even-handed (at least when the jury could overhear his admonitions to defense counsel), but neither on that subject nor any other did the judge violate the Due Process Clause, which in criminal cases deals with only egregious transgres- sions of trial rules and decorum. Donnelly v. DeChristoforo 416 U.S. 637 (1974).

A FFIRMED