United States v. Smith ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 3, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-4149
(D.C. No. 2:16-CR-00020-DN-1)
MARLON ALONZO SMITH, (D. Utah)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, and BACHARACH, Circuit
Judges.
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This case grew out of a traffic stop in a remote outpost in Utah. Mr.
Marlon Smith, a black man, was stopped for speeding. When the police
officer expressed suspicion that the car contained drugs, Mr. Smith peeled
away. He was ultimately apprehended with a large quantity of
methamphetamine in the car.
*
Oral argument would not materially help us to decide this appeal. We
have therefore decided the appeal based on the briefs. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
The discovery of the drugs led to a conviction for possessing
methamphetamine with the intent to distribute. 21 U.S.C. § 841(a)(1). Mr.
Smith appeals the conviction, arguing that the government lacked
sufficient evidence of guilt and presented unfairly prejudicial expert
testimony by an unqualified witness. We reject these arguments and affirm
the conviction.
I. The evidence of guilt was sufficient.
We first conclude that the evidence sufficed to convict on the charge
of possessing methamphetamine with intent to distribute.
A. Test for Sufficiency of the Evidence
On appeal, Mr. Smith argues for the first time that the evidence of
guilt was insufficient. Because he didn’t raise this argument in district
court, we review for plain error. United States v. Kaufman, 546 F.3d 1242,
1263 (10th Cir. 2008). But our test for plain error largely mirrors the test
that we would ordinarily apply for sufficiency of the evidence. United
States v. Flanders, 491 F.3d 1197, 1208 (10th Cir. 2007). When applying
the test for sufficiency of the evidence, we view the evidence and
reasonable inferences in the light most favorable to the government and
determine whether a reasonable jury could find guilt beyond a reasonable
doubt. Kaufman, 546 F.3d at 1263.
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B. Elements of the Offense
To make this determination, we consider the elements of the crime:
(1) the defendant’s possession of the methamphetamine, (2) the
defendant’s knowledge of the methamphetamine, and (3) the defendant’s
intent to distribute the methamphetamine while it was in his possession.
United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004). A
reasonable jury could find all of these elements.
1. Possession
Possession may be actual or constructive. United States v. Hooks,
780 F.3d 1526, 1531 (10th Cir. 1986). The possession is actual when the
defendant knowingly has direct physical control. United States v. Turner,
553 F.3d 1337, 1343 (10th Cir. 2009).
The factfinder could reasonably infer that Mr. Smith had direct
physical control of the methamphetamine because (1) he was the only
person in the vehicle and (2) he claimed to be driving cross-country in his
own rental car. Given these circumstances, the factfinder had little reason
to believe that the methamphetamine was someone else’s. See Pulido-
Jacobo, 377 F.3d at 1130 (stating that the factfinder can “infer that the
driver of a vehicle has knowledge of the contraband within it”).
2. Knowledge
The factfinder could also reasonably find that Mr. Smith had known
about the methamphetamine and had concealed it under the carpet in the
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car. The carpet was missing a rivet, and Mr. Smith had a tool in his
luggage that would remove rivets. The jury could thus reasonably infer that
Mr. Smith had knowingly possessed the methamphetamine. 1
Mr. Smith denies knowledge of the methamphetamine and alleges
that the police officers planted the drugs out of anger for the car-chase.
But why did Mr. Smith flee? He insists that as a black man, he feared
being stopped by two white police officers in an unpopulated area. But as
Mr. Smith neared a town, he turned around and led the police in a high-
speed chase back into a deserted area. Speeding away from the town
suggests that Mr. Smith was trying to evade capture rather than surrender
peacefully in a populated area.
In any event, the jury needn’t have believed Mr. Smith’s explanation
for fleeing and could instead have believed that he fled because he knew
that he had methamphetamine inside his car. See United States v. Ibarra-
Diaz, 805 F.3d 908, 934 (10th Cir. 2015) (concluding that the defendant’s
flight from the scene supported a reasonable inference of the defendant’s
knowledge and culpability relating to the drugs found inside the car). And
irrespective of why Mr. Smith had fled, the factfinder could reasonably
reject this allegation that the officers had planted the drugs.
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The methamphetamine had been wrapped in the same material used in
a box addressed to Mr. Smith.
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3. Intent to Distribute
The jury could also reasonably infer that Mr. Smith had intended to
distribute the methamphetamine. The 1178 grams of methamphetamine had
a street value ranging from about $90,000 to over $124,000. The high value
of the methamphetamine supports an inference of intent to distribute.
United States v. Powell, 982 F.2d 1422, 1430 (10th Cir. 1992). In addition,
an expert witness testified that Mr. Smith’s text messages had reflected
arrangements to get the methamphetamine and transport it for distribution.
See Part 2, below.
* * *
The factfinder could reasonably infer that Mr. Smith had knowingly
possessed the methamphetamine with the intent to distribute. We thus
reject Mr. Smith’s challenge to the sufficiency of the evidence.
II. The district court did not err in permitting the government’s
expert witness to testify about the meaning of text messages.
The government’s evidence included expert testimony by a DEA
agent about the meaning of text messages between Mr. Smith and someone
named “Teddy.” The expert witness opined that the text messages related
to Mr. Smith’s arrangements to obtain the methamphetamine.
Mr. Smith argues on appeal that the district court erred in allowing
the testimony because (1) the police officer lacked the necessary
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qualifications as an expert witness and (2) the testimony was unfairly
prejudicial. We reject both arguments.
We review the challenge to the expert witness’s qualifications only
to determine whether the district court clearly abused its discretion. United
States v. Zamora, 784 F.2d 1025, 1028 (10th Cir. 1986). According to Mr.
Smith, the agent lacked enough education in linguistics to qualify as an
expert witness. But “qualification as an expert witness may come from
experience as well as education.” Fed. R. Evid. 702, advisory committee’s
note (2000). The agent testified that she had served in law enforcement for
roughly twenty years, had received extensive training, and had read
thousands of line sheets from recorded drug calls. Based on this
experience, she testified that she had developed a familiarity with code
words for drugs. Given this experience, the district court acted within its
discretion in regarding the witness as an expert qualified to give opinion
testimony about the meaning of the text messages. See, e.g., United States
v. Duran, 941 F.3d 435, 451 (10th Cir. 2019) (upholding the introduction
of expert testimony involving the use of coded language in drug
transactions based on a law-enforcement agent’s experience in drug-
trafficking cases).
Mr. Smith also argues that the expert testimony was unfairly
prejudicial. But Mr. Smith didn’t make this argument in district court. We
thus consider only whether the ruling reflected plain error. United States v.
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Brooks, 736 F.3d 921, 929-30 (10th Cir. 2013). An error is “plain” only if
it was obvious. United States v. Rufai, 732 F.3d 1175, 1189 (10th Cir.
2013).
We need not decide whether the district court erred. Even if it did, an
error would not have been obvious in light of our prior holdings and the
sparsity of Mr. Smith’s argument: We’ve “repeatedly held” that expert
testimony can help a jury to understand the terminology in drug
transactions, United States v. Quintana, 70 F.3d 1167, 1170–71 (10th Cir.
1995), and Mr. Smith does not explain why the expert testimony was
unfairly prejudicial.
III. Conclusion
We affirm. The evidence of guilt was sufficient, and the district court
did not abuse its discretion in allowing the expert testimony.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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