United States v. Alberto Naranjo Delatorre ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12693 FEBRUARY 4, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00198-CR-CC-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO NARANJO DELATORRE,
a.k.a. Beto La Chingadera,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 4, 2009)
Before TJOFLAT, BIRCH, and DUBINA, Circuit Judges.
PER CURIAM:
Alberto Naranjo Delatorre appeals his convictions for conspiracy to possess
with intent to distribute at least five kilograms of cocaine and aiding and abetting
possession with intent to distribute at least five kilograms of cocaine. He asserts
that there was insufficient evidence for the jury to convict him on either count and
that the district court abused its discretion by permitting an expert witness to testify
to matters outside the scope of her expertise. After reviewing the record and the
parties’ briefs, we AFFIRM his convictions.
I. BACKGROUND
A federal grand jury sitting in the Northern District of Georgia returned a
two-count indictment charging Delatorre and Fernando Villanueva-Naranjo with
conspiracy to possess with intent to distribute at least five kilograms of cocaine, in
violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and 846, and aiding and abetting
possession with intent to distribute at least five kilograms of cocaine, in violation
of 21 U.S.C. § 841(b)(1)(A)(ii) and 18 U.S.C. § 2. R1-10. Villanueva-Naranjo
subsequently entered a guilty plea, but the case against Delatorre proceeded to trial.
The jury found Delatorre guilty on both counts, and he was sentenced to 292
months of imprisonment, along with five years of supervised release and a $200
special assessment. R2-193.
At trial, multiple witnesses testified regarding the allegations against
Delatorre. Ron Skipper, a Drug Enforcement Agency (“DEA”) agent, discussed
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Delatorre’s actions on 27 February 2006. On that date, Skipper was conducting
surveillance on a house in Duluth, Georgia that he had reason to believe would be
the site of drug transaction. R10 at 30–33. According to Skipper, Villanueva-
Naranjo arrived at the house in a green Infiniti car, parked in the driveway, and
went inside the building. Id. at 35–36. About one minute later, Delatorre came out
of the front door to the house, entered the Infiniti, and backed out of the driveway.
Id. at 36–37. Around the same time, a black Ford Focus driven by Villanueva-
Naranjo emerged from the garage and backed out of the driveway. Id. at 37-38.
Delatorre then parked the Infiniti, approached the Ford, spoke briefly to
Villanueva-Naranjo, returned to the Infiniti, and drove off, with the Ford following
behind him. Id. at 39. Skipper tailed the two cars. At one point, when the cars had
pulled up side-by-side, he observed Delatorre and Villanueva-Naranjo speaking to
each other. Id. at 41. Shortly thereafter, Georgia law enforcement conducted a
traffic stop on the Ford, based on a request by the DEA, and discovered over
sixteen kilograms of cocaine hidden inside the side panels of that car. Id. at 45, 48,
54. A different witness, DEA agent Robert Murphy, testified that he saw Delatorre
drive past the traffic stop twice, slowing down on the second occasion to look at
the scene. R11 at 166–67.
Jay Mortenson, another DEA agent, testified regarding the 21 April 2006
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execution of a search warrant for a house in Lawrenceville, Georgia. Id. at 223,
225, 228. In the course of this search, Mortenson encountered Delatorre, for whom
he had two arrest warrants. Id. at 229, 236–37. The agents conducting the search
found four cellular telephones in the master bedroom as well as a notebook
containing names and telephone numbers and more than $16,000 in cash. Id. at
239–43, 247. The assigned phone number for one of the telephones matched a
number that was the subject of a DEA investigation. Id. at 241–42. In addition, a
separate witness, Maria Cervantes-Suarez, who had lived in the house for two
years, testified that Delatorre was a resident of the house and slept in the master
bedroom. R12 at 362–65.
Anthony Hall, a former drug dealer, also testified at trial. Id. at 397–98.
Hall stated that sixteen kilograms of cocaine would be an amount commensurate
with distribution rather than personal use. Id. at 407. He also noted that, when he
was a drug dealer, he frequently changed cellular phones to avoid wiretapping and
employed coded language when requesting drugs, such as “girls” for cocaine,
“paper” for money, and “work” for any type of drug. Id. at 409–12. In addition to
these more general topics, Hall also discussed his interactions with Delatorre and
Villanueva-Naranjo. Hall first met Villanueva-Naranjo, whom he knew as “Polo,”
through a mutual acquaintance, Lee Braggs. Villanueva-Naranjo supplied Braggs
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and Hall with marijuana and cocaine, the latter ranging from two to five kilograms.
Id. at 422–23, 425–27. On one occasion in early 2005, Hall met with Villanueva-
Naranjo, who brought along Delatorre to the encounter. At this meeting, Hall
requested that Villanueva-Naranjo provide him with more drugs so that Hall could
pay off a debt owed by Braggs, who was then in police custody. Id. at 432–37.
Hall’s discussion with Villanueva-Naranjo involved multiple instances of Hall
making a statement in English to Villanueva-Naranjo, Villanueva-Naranjo turning
to Delatorre and briefly conversing with him in Spanish, and then Villanueva-
Naranjo responding in English to Hall’s statement. Id. at 437–41. All of Hall’s
remarks dealt with negotiating the terms for providing the cocaine he requested.1
Id. The conversation ended with Villanueva-Naranjo stating that he would speak
with “his friend” to arrange Hall’s pickup of the cocaine. Id. at 441. Hall spoke
with Villanueva-Naranjo the following day and received the five kilograms of
cocaine he requested. Id.The government also called Spring Williams, who was the DEA case agent
for Delatorre’s case, as an expert witness on the organization and structure of
Mexican drug-trafficking organizations. R13 at 545, 572. Delatorre conducted a
voir dire examination of Williams, after which he decided not to object to her
1
Hall did not speak Spanish, so he was unable to translate what Villanueva-Naranjo and
Delatorre were saying to each other. Id. at 438.
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opinions, and the court deemed her to be a qualified expert in the aforementioned
areas. Id. at 572–74. As part of Williams’s testimony, she noted her belief that,
based on her training and experience, the house in Duluth was a “stash house” — a
storing place for drugs in which people might live but without the normal array of
furnishings. Id. at 579–80. She also discussed her familiarity with the lingo of the
drug trade, including the use of particular code words in both oral conversations
and drug ledgers. Id. at 588–90. Relying on this knowledge, she stated the
notebook found at the Lawrenceville house was a drug ledger because of the
language used in it. Id. at 590–92.
Williams also discussed a wiretapping investigation the DEA conducted for
a different case, in which they had recorded various telephone calls involving
Delatorre, including one made to “Bucio,” a large-scale Atlanta drug distributor.
Id. at 608–09. In these telephone calls, she explained, Delatorre used coded words
to identify himself as a source of drugs and discussed purchasing and supplying
drugs. Id. at 616–618. Williams also testified about a number of other calls which
had been wiretapped either for this investigation or another case, in many of which
Delatorre was making coded statements regarding the buying, selling, and shipping
of drugs. See, e.g., R14 at 664–70. After the completion of Williams’s testimony,
Delatorre moved for a directed verdict on both counts of the indictment. Id. at 754.
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The court found that the government had presented sufficient evidence in support
of its allegations and thus denied the motion. Id. at 755. Delatorre now appeals
this decision as well as his convictions.
II. DISCUSSION
Delatorre raises three issues on appeal. First, he contends that there was
insufficient evidence as a matter of law to sustain his convictions. Second, he
asserts that the district court erred in allowing Williams to testify as an expert
witness about matters beyond the scope of her expertise. Third, he argues that the
district court erred in denying his motion for judgment of acquittal. We will
address these arguments in turn.
A. Sufficiency of the Evidence
Delatorre alleges that there were a number of problems with the evidence
presented by the government at trial, which render it insufficient to support his
convictions. He notes that the government failed to offer any proof that he knew
about, handled, or directed anyone to conceal the packages of cocaine found in the
Ford Focus. He also criticizes the government’s failure to present any statements
from co-conspirators or evidence that he owned or lived in the houses in
Lawrenceville and Duluth. In addition, he asserts that the government should have
used more advanced voice-recognition techniques in analyzing the taped
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conversations.
We review claims involving the sufficiency of the evidence to support a
conviction de novo. See United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.
2008) (per curiam). In so doing, we view all evidence in the light most favorable
to the government and make all reasonable credibility choices and inferences in
favor of the jury’s verdict and the government’s position. See id. We must affirm
a conviction unless no reasonable construction of the evidence would support the
jury’s conclusion of guilt beyond a reasonable doubt. See id.To prove possession with intent to distribute cocaine, the government must
establish that the an individual possessed cocaine, had knowledge of this
possession, and intended to distribute the cocaine. See United States v. Woodard,
531 F.3d 1352, 1360 (2008). The government can use direct or circumstantial
evidence to prove each of these three elements. See id. Possession could be either
actual or constructive. See id. Actual possession involves “direct physical
control” over the cocaine, whereas constructive possession can be established “by a
showing of ownership or dominion and control over the drugs or over the premises
on which the drugs are concealed.” Id. (quotation marks and citations omitted).
To prove aiding and abetting possession with intent to distribute, the government
must show that someone committed that offense, that the defendant “committed an
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act which contributed to and furthered” the offense, and that the defendant
intended to aid in the commission of the offense. United States v. Camacho, 233
F.3d 1308, 1317 (11th Cir. 2000)
A conviction for conspiracy to possess cocaine with intent to distribute will
be sustained if the government proves “beyond a reasonable doubt that (1) an
illegal agreement existed; (2) the defendant knew of it; and (3) the defendant, with
knowledge, voluntarily joined it.” United States v. Hernandez, 433 F.3d 1328,
1333 (11th Cir. 2005) (quotation marks omitted). A defendant’s presence at a
crime scene would be insufficient to support a conspiracy conviction on its own,
though it could be a “a probative factor which the jury may consider in determining
whether a defendant was a knowing and intentional participant in a criminal
scheme.” Id. (quotation marks omitted). Participation in a conspiracy can be
shown through circumstantial evidence. See United States v. Anderson, 326 F.3d
1319, 1329 (11th Cir. 2003). Accordingly, the government has to prove only that a
defendant “knew the general nature and scope of the conspiracy.” Id.Based on our review of the record, we find that the government presented
sufficient evidence to support the jury’s determination that Delatorre possessed
cocaine with the intent to distribute and that he was involved in a conspiracy to
possess with intent to distribute cocaine. The evidence uncovered during the
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search of the Lawrenceville house supported both convictions when considered in
combination with witness testimony. Cervantes-Suarez testified that Delatorre
lived in the house and slept in the master bedroom in which police found several
cell phones. Agent Williams stated her belief that the notebook found in the house
was a drug ledger based on her familiarity with such objects. Additionally, Hall
noted that he used multiple cell phones to avoid wiretapping. From all of this
evidence, the jury reasonably could have inferred that the objects in the house
reflected participation in drug trafficking and that Delatorre took part in this
trafficking by virtue of his presence in key areas of the house. Further, the jury
could have viewed the language in the notebook and Delatorre’s use of the master
bedroom as proof of his role in the possession and distribution of cocaine as well
as his control over implements used in connection with those actions.
The evidence regarding the interactions between Delatorre and Villanueva-
Naranjo also supported both convictions. Agent Skipper testified that he saw
Delatorre and Villanueva-Naranjo confer with each other on multiple occasions
shortly before the police found the cocaine in the Ford Focus that Villanueva-
Naranjo was driving. Additionally, Hall noted that the amount of cocaine in the
car was more in line with distribution than personal use. The jury could have
reasonably concluded based on this testimony that Delatorre and Villanueva-
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Naranjo had discussed the contraband cocaine and conspired to distribute this
amount, thereby also finding that Delatorre intended to distribute the cocaine.
Similarly, the jury would have been reasonable in viewing Delatorre’s actions as
aiding and abetting possession and distribution of cocaine, particularly with respect
to the quantity found in the Ford Focus.
Hall’s testimony regarding his meeting with Delatorre and Villanueva-
Naranjo further supports the jury’s verdict. Hall indicated that, in the course of his
negotiations with Villanueva-Naranjo about obtaining cocaine, Villanueva-Naranjo
repeatedly spoke with Delatorre before responding to Hall’s statements. Though
Hall did not understand Spanish and thus could not say what the topics of these
discussions were, the jury reasonably could have inferred that Delatorre and
Villanueva-Naranjo were conferring about the cocaine. The jury thus would have
been justified in treating this as circumstantial evidence that Delatorre and
Villanueva-Naranjo were discussing the quantity and price of the drugs that they
would sell to Hall. Additionally, since Hall subsequently received the drugs he
requested in that meeting, the jury could have reasonably concluded that Delatorre
either exercised control over the distribution of cocaine or aided and abetted
Villanueva-Naranjo in such distribution.
This evidence, taken as a whole and viewed in the light most favorable to the
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government, therefore showed that Delatorre knowingly and voluntarily joined in
an illegal agreement with Villanueva-Naranjo to possess and distribute cocaine and
that he aided and abetted possession with intent to distribute cocaine. The
evidentiary omissions mentioned by Delatorre, such as the lack of photographic
evidence, do not affect this conclusion since the government presented sufficient
circumstantial evidence to support the verdict. In addition, Delatorre cites no
authority for requiring the government to have employed more advanced voice
recognition techniques. We thus find those arguments to be without merit.
Accordingly, we conclude that the evidence was sufficient to support both of
Delatorre’s convictions. See Woodard, 531 F.3d at 1360; Hernandez, 433 F.3d at
1333.
B. Agent Williams’s Testimony
Delatorre argues that the district court erred by permitting Williams to testify
as an expert regarding matters outside the scope of her expertise. In particular, he
takes issue with Williams’s testimony regarding the proper interpretation of
language in the wiretapped conversations and notebooks, which she asserted were
coded drug references. Delatorre notes that since Williams was not an expert in
Mexican drug traffickers, she should not have been allowed to testify regarding the
meaning of certain terms allegedly used by such individuals. The government’s
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failure to provide someone involved in the conspiracy who could independently
corroborate Williams’s interpretations, he asserts, effectively usurped the jury’s
ability to evaluate accurately and fully the evidence. In addition, Delatorre
contends that the probative value of this evidence was outweighed by its
prejudicial value and thus should have been inadmissible under Federal Rule of
Evidence 403.
We review a district court’s decisions regarding the admissibility of expert
testimony and the reliability of expert opinions for abuse of discretion.2 See
United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). The
Federal Rules of Evidence permit expert witnesses to testify about any form of
“specialized knowledge [that] will assist the trier of fact to understand the evidence
or to determine a fact in issue” so long as they are “qualified as an expert by
knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. The
testimony is admissible if it is “based upon sufficient facts or data” and “is the
product of reliable principles and methods” that the witness has applied reliably to
2
The government contends that we should review for plain error Delatorre’s argument
regarding the failure to present evidence to verify the accuracy of Williams’s opinions since he
did not raise the argument before the district court. Though Delatorre did not mention this issue
to the district court, we will treat it as a subpart of his general objection to the admission of
Williams’s testimony, an argument he has preserved. We thus will apply the abuse of discretion
standard to Delatorre’s entire allegation. Given that we find the district court did not abuse its
discretion, there would also be no plain error, so the ultimate outcome would be the same
regardless of which standard of review we applied.
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the facts of the particular case. Id. If we find that the district court improperly
allowed evidence to be introduced, we then look at whether the error would be
harmless in light of the non-problematic evidence produced. See United States v.
Carrazana, 921 F.2d 1557, 1568 (11th Cir. 1991) (noting that, even if drug lingo
testimony was excluded, there was ample evidence in record to support defendant’s
drug conspiracy conviction).
Drug enforcement agents can provide expert testimony regarding drug
dealing operations because of their ability “to help a jury understand the
significance of certain conduct or methods of operation unique to the drug
distribution business.” United States v. Garcia, 447 F.3d 1327, 1335 (11th Cir.
2006) (quotation marks and citation omitted). For much the same reason, we have
found that a district court’s admission of expert testimony of policemen
interpreting drug codes, slang, and other jargon does not violate Rule 702. See id.Delatorre correctly notes, however, that the officers whom we previously have
permitted to testify as experts regarding drug jargon appear to have been more
well-versed in the particular drug trafficking schemes at issue than Williams was
here. See, e.g., id. (Mexican drug trafficking case in which officer took part in
over 50 drug investigations, the majority of which involved Mexican drug
traffickers); Carrazana, 921 F.2d at 1567 (officer in Cuban drug case was “a native
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Spanish speaker with an understanding of slang peculiar to the Cuban dialect ”).
Nevertheless, we find that Williams’s knowledge of and expertise in dealing with
drug trafficking schemes was sufficient experience to allow her to testify as an
expert about matters relating to such organizations, including drug jargon. See
Garcia, 447 F.3d at 1335 (noting that officer’s past involvement with drug
investigations and familiarity “with the coded language that some drug trafficking
organizations use” was sufficient to make him “an experienced narcotics agent”)
(quotation marks omitted).
Delatorre’s Rule 403 argument also fails. Evidence regarding coded drug
language can be highly probative because of the often secretive nature of
discussions involving drug dealers. See id. This probative value generally is
sufficient to outweigh any potential prejudice, and we see no reason to view the
value of Williams’s testimony any differently. See id.Accordingly, we find that the district court did not abuse its discretion in
permitting Williams to testify about drug jargon based on her own experience,
especially since the jury could take into account her expertise in that area. In
addition, the government presented ample independent evidence concerning
Delatorre’s involvement in the drug conspiracy. Any error in admitting expert
witness testimony therefore would be harmless.
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C. Motion for Judgment of Acquittal
Delatorre contends that the district court erred in denying his motion for a
judgment of acquittal by failing to use the appropriate legal standards for
evaluating his claims. “We review de novo the district court's denial of a motion
for judgment of acquittal, applying the same standard used in reviewing the
sufficiency of the evidence, meaning that we view the facts and draw all inferences
in the light most favorable to the Government.” United States v. Descent, 292 F.3d
703, 706 (11th Cir. 2002) (per curiam). As previously noted, there was sufficient
evidence in the record to support the jury’s finding of guilt on both counts. Since
we apply the same sufficiency standard in assessing the district court’s disposition
of Delatorre’s motion, we find no error in the court’s decision to deny that motion.
III. CONCLUSION
Delatorre asserts that there was insufficient evidence to support his
convictions for conspiracy to possess with intent to distribute cocaine and aiding
and abetting possession with intent to distribute cocaine. Based on our review of
the record, we find that there was sufficient evidence to support his convictions and
to deny his motion for judgment of acquittal. Additionally, the district court’s
decision to permit Agent Williams to testify regarding drug jargon was not an
abuse of discretion and, at worst, amounted to harmless error. Accordingly, we
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AFFIRM Delatorre’s convictions.
AFFIRMED.
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