In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-4103

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GERARDO HERNANDEZ-RIVAS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00 CR 194—J.P. Stadtmueller, Judge.

____________

ARGUED SEPTEMBER 12, 2003—DECIDED OCTOBER 30, 2003

____________

Before BAUER, KANNE, and EVANS, Circuit Judges.

BAUER, 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 affirm the district court.

I. Background

For approximately one-and-a-half years, Hernandez-Rivas

and several other Hispanic men living in Walworth County,
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 twentyfive 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 sixtyone 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 HernandezRivas’ 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 falsified 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. 
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 admission 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
4 No. 02-4103

physical evidence be denied, Hernandez-Rivas failed to file

an objection with the district court. Hernandez-Rivas argues 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 situation 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 motion 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
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, probablecause 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 because the officer detected it by touch. Id. at 375-76. During

the course of the pat-down the deputies seized $10,000 cash
6 No. 02-4103

from Hernandez-Rivas breast pocket and a false identification 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 HernandezRivas 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 HernandezRivas’ 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 evidentiary 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 received 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. FED. R. EVID. 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
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 admissibility 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 cumulative; (3) whether other evidence corroborated or contradicted 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 HernandezRivas, 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.” 
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 protected 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 deficiencies 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 otherwise 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 performance 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 AFFIRM.
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