United States v. Jose Antonio Hererra ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10568 ELEVENTH CIRCUIT
Non-Argument Calendar JAN 6, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 7:10-cr-00185-LSC-JEO-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JOSE ANTONIO HERRERA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 6, 2012)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Jose Antonio Herrera appeals his conviction and sentence of 210 months of
imprisonment for possession with intent to distribute five kilograms or more of
cocaine. 21 U.S.C. § 841(a)(1). Herrera argues about prosecutorial misconduct,
the sufficiency of the evidence, a jury instruction on deliberate ignorance, the
admission of testimony, and the denial of relief under the safety valve. We affirm.
Herrera argues that the government failed to disclose exculpatory evidence
in violation of his constitutional right to due process, Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194 (1963), but we disagree. “A Brady violation . . . occur[s] if the
prosecution delays in transmitting evidence during a trial, but only if the defendant
can show prejudice.” United States v. Beale, 921 F.2d 1412, 1426 (11th Cir.
1991). Before Herrera’s first trial, a magistrate judge ordered the prosecution to
produce an agent’s notes of an interview of Herrera, and the prosecution complied
with that order before Herrera’s second trial. Fed. R. Crim. P. 16(a)(1)(B)(ii). The
magistrate judge’s order to produce the notes was in a footnote of an order that
neither party noticed before Herrera’s first trial. Herrera argues that, under Brady,
the evidence should have been produced sooner, but he fails to identify any
information in the notes that was “favorable” to him or “material to the
establishment of his guilt or innocence.” Beale, 921 F.2d at 1426. The district
court did not abuse its discretion when it denied Herrera’s motion to dismiss based
on the alleged Brady violation.
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Herrera argues that the government failed to prove that he knowingly
possessed or intended to distribute the 98.35 grams of cocaine found in a hidden
compartment of his tractor trailer truck, but the record supports his conviction.
When Trooper Darrell Seymour stepped up to the window of Herrera’s truck to
conduct a commercial vehicle inspection, he noticed immediately what appeared
to be a hidden compartment in the bunk area that had been covered with carpet in
different color than the rest of the cab. Herrera’s conduct was inconsistent with
that of a commercial truck driver with two years experience: Herrera provided
loose sheets of paper when asked to produce his log book, and he was unable to
trigger his low air warning device without Seymour’s assistance. Herrera also
acted extremely nervous during the inspection. Herrera’s eyes opened “real wide”
and he had a “real shocked and surprised look” when Seymour asked Herrera to
produce safety articles for the truck that are stored typically in the bunk; upon
climbing inside the patrol car, Herrera laughed uncomfortably and asked if he
could “go out there and dig up a pine tree”; while inside the police vehicle,
Herrera scratched himself and coughed repeatedly; and, when questioned about
the tree, Herrera stated that he would remove the tree from the ground using his
hands in lieu of a shovel. After Seymour discovered the cocaine, Seymour told
Herrera that he was being arrested for “the dope,” and Herrera repeated, “the
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dope.” Later, Herrera told Seymour that he had “had a bad feeling about this trip.”
Less than two months earlier, Charles Engle of the Immigration and Customs
Enforcement agency had shown Herrera where a hidden compartment had been
added to the sleeping compartment in another truck he was driving for the same
trucking company. Although the compartment was empty, Engle explained to
Herrera that similar compartments were used to transport illegal drugs. Based on
Herrera’s encounters with law enforcement, the jury reasonably found that Herrera
had a “consciousness of guilt,” United States v. Leonard, 138 F.3d 906, 909 (11th
Cir. 1998), and the district court did not err by denying Herrera’s motion for a
judgment of acquittal. In the light of the evidence against Herrera, the district
court also did not abuse its discretion when it instructed the jury about both actual
knowledge and deliberate ignorance. See United States v. Arias, 984 F.2d 1139,
1143–44 (11th Cir. 1993).
Herrera argues that the district court should have excluded Engle’s
testimony as unduly prejudicial, but Herrera’s argument fails. Evidence about
Herrera’s observation of another hidden compartment in another truck owned by
the same company and his notice of the purpose for such a compartment was
material and, as he concedes, not a prior bad act governed by Federal Rule of
Evidence 404(b). Engle’s testimony was probative and not unduly prejudicial.
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Engle’s testimony established only that he informed Herrera about the presence
and purpose of a hidden compartment.
Herrera also argues that he was entitled to relief under the safety valve, but
we disagree. To qualify for relief under the safety valve, a “defendant has an
affirmative responsibility to truthfully disclose to the government all information
and evidence that he has about the offense and all relevant conduct.” United States
v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004) (internal quotation marks
omitted); 18 U.S.C. § 3553(f); United States Sentencing Guidelines Manual §
5C1.2(a) (Nov. 2010). In response to his presentence investigation report, Herrera
submitted a four-page statement in which he denied any knowledge about the
cocaine, and the district court discredited Herrera’s statement consistent with the
jury’s verdict. The district court did not err by denying Herrera’s request for relief
under the safety valve.
We AFFIRM Herrera’s conviction and sentence.
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