United States v. Dennis Friske ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-14915 JUNE 20, 2011
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00010-CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIEGO CHOXJ CHA,
a.k.a. Lorenzo Sac,
WILLIAM J. ERICKSON,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(June 20, 2011)
Before MARTIN and BLACK, Circuit Judges, and RESTANI,* Judge.
PER CURIAM:
*
Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting
by designation.
Diego Choxj Cha, also known as Lorenzo Sac (“Sac”), and William J.
Erickson (“Erickson”) appeal their convictions and sentences. A jury found Sac
guilty of manufacturing or possessing with intent to distribute at least 100, but less
than 1000, marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii)
and 18 U.S.C. § 2. The district court sentenced Sac to the mandatory sixty-month
minimum term of imprisonment followed by four years of supervised release. See
21 U.S.C. § 841(b)(1)(B). Erickson was convicted of conspiracy to manufacture
and possess with intent to distribute more than 100, but less than 1000, marijuana
plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(vii) and 18 U.S.C. § 846;
manufacturing and possessing with intent to distribute at least 100, but less than
1000, marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii) and
18 U.S.C. § 2; and attempting to obstruct an official proceeding, in violation of 18
U.S.C. §§ 1512(c)(2) and 2. The district court sentenced Erickson to 88 months
imprisonment. After careful review of the record and the parties’ briefs, and
having had the benefit of oral argument, we affirm Sac’s and Erickson’s
convictions and sentences.
I.
Sac first argues that the district court erred in excluding two lay witnesses’
testimony as to whether Sac knew what marijuana was and whether he knew it was
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illegal. We review evidentiary questions for abuse of discretion. United States v.
Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). We will not reverse because of
an evidentiary ruling if the error was harmless. United States v. Khanani, 502 F.3d
1281, 1292 (11th Cir. 2007). A lay witness’s testimony is “limited to those
opinions or inferences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of [the rule on expert testimony].” Fed. R.
Evid. 701. A lay witness’s opinion is admissible “only if it is based on first-hand
knowledge or observation . . . .” United States v. Marshall, 173 F.3d 1312, 1315
(11th Cir. 1999).
The district court did not err in excluding the lay witnesses’ testimony as to
whether Sac knew what marijuana was or whether it was illegal. Sac’s personal
knowledge of the identifying characteristics of marijuana and its illegality were not
matters that were rationally based on the perceptions of these lay witnesses. See
Fed. R. Evid. 701. Neither witness knew Sac personally nor had first-hand
knowledge of his familiarity with marijuana at the time of the offense. Sister Mary
Waddell, a missionary who had worked in Guatemala, testified in general about the
pervasive poverty and illiteracy in the part of the country in which Sac had lived.
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Similarly, Christian Barrientos, a biologist, testified in general about the
biodiversity of the plants in Guatemala. While these witnesses may have had
knowledge of the people and area where Sac was from, Sac did not establish that
they had first-hand knowledge of his particular familiarity with marijuana. By
Sac’s own admission, he left Guatemala and had been residing in the United States
for at least several months before law enforcement found him in Williston, Florida
living in a house filled with hundreds of marijuana plants and working to cultivate
them. Because the lay witnesses’ testimony about Sac’s familiarity with marijuana
was improper under Rule 701, the district court did not abuse its discretion in
excluding it.
II.
Sac next challenges the sufficiency of the evidence supporting his conviction
for knowingly and intentionally manufacturing and possessing with intent to
distribute more than 100 but less than 1000 marijuana plants. Specifically, Sac
argues that the government failed to establish that he knew what marijuana was or
that it was an illegal controlled substance. We review de novo whether the
evidence was sufficient to sustain a conviction. United States v. Jiminez, 564 F.3d
1280, 1284 (11th Cir. 2009). We “view the evidence in the light most favorable to
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the government and resolve all reasonable inferences and credibility evaluations in
favor of the jury’s verdict.” United States v. Robertson, 493 F.3d 1322, 1329 (11th
Cir. 2007) (quotation marks omitted). “We will not overturn a conviction on the
grounds of insufficient evidence ‘unless no rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” United States v.
Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (quoting United States v. Christo,
129 F.3d 578, 579 (11th Cir. 1997)).
To obtain a conviction under § 841(a)(1), the government must prove
beyond a reasonable doubt that the defendant knowingly or intentionally possessed
marijuana with intent to manufacture, distribute, or dispense it. See 21 U.S.C.
§ 841(a)(1). “[T]he government must establish the existence of three elements: (1)
knowledge (of one’s possession); (2) possession of a controlled substance; and (3)
intent to distribute that substance.” United States v. Wilson, 183 F.3d 1291, 1299
n.13 (11th Cir. 1999). The government may establish “possession” by proving
either actual or constructive possession. See United States v. Leonard, 138 F.3d
906, 909 (11th Cir. 1998). The intent to distribute may be inferred from the
amount of drugs involved. United States v. Hernandez, 433 F.3d 1328, 1333 (11th
Cir. 2005), cert. denied, 547 U.S. 1047, 126 S. Ct. 1634 (2006).
Viewing the evidence in the light most favorable to the government, there
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was sufficient evidence to support Sac’s conviction. The government established
that Sac had been living and working at a residence in Williston, Florida that had
been converted into a large-scale marijuana growing operation. When law
enforcement executed a search warrant at that residence on April 9, 2008, they
discovered Lorenzo Sac and his brother, Francisco Sac, hiding in a bathtub and
found 917 marijuana plants growing in rooms throughout the house, including the
bathroom where Sac was hiding. Law enforcement could smell the odor of
marijuana emanating from the house. Law enforcement also found specialized
lights, generators, air conditioners, diesel fuel, propane, potting soil and other
equipment necessary for growing marijuana in the residence. Lorenzo and
Francisco admitted that they were paid $500 per week to tend to and harvest the
marijuana plants at this residence.
Sac argues that based on his testimony that he was not familiar with
marijuana, no reasonable jury could have found him guilty beyond a reasonable
doubt. We disagree. Sac testified that he did not know that the 917 plants in the
residence were marijuana plants. The jury was free to find that Sac was not a
credible witness and disbelieve Sac’s assertions that he did not know what
marijuana was or that it was illegal. See United States v. Brown, 53 F.3d 312, 314
(11th Cir. 1995) (explaining that a defendant’s trial testimony “if disbelieved by
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the jury, may be considered as substantive evidence of the defendant’s guilt”).
We therefore conclude that the evidence was sufficient to support Sac’s
conviction. See United States v. Smith, 893 F.2d 1269, 1274 (11th Cir. 1990)
(sustaining conviction for knowingly and intentionally possessing with intent to
distribute marijuana where defendant was living on property upon which a patch of
marijuana was being grown and the marijuana plants were visible from the trailer
in which defendant was living); see also United States v. Coronel, 750 F.2d 1482,
1487–88 (11th Cir. 1985) (sustaining conviction for possession with intent to
distribute cocaine where law enforcement found defendant hiding near an
incubator that contained cocaine and where smell of cocaine and ether was
discernible).
III.
Finally, Sac challenges the reasonableness of his sixty-month sentence.
Sac’s offense carries a sixty-month mandatory minimum sentence. See 21 U.S.C.
§ 841(b)(1)(B). However, Sac argues that he was entitled to a sentence lower than
the statutory mandatory minimum sentence under the “safety valve” exception, 18
U.S.C. § 3553(f). “When reviewing the denial of safety-valve relief, we review for
clear error a district court’s factual determinations.” United States v. Johnson, 375
F.3d 1300, 1301 (11th Cir. 2004). “We review de novo the court’s legal
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interpretation of the statutes and sentencing guidelines.” Id.“It is well-settled that a district court is not authorized to sentence a
defendant below the statutory mandatory minimum unless the government filed a
substantial assistance motion pursuant to 18 U.S.C. § 3553(e) or the defendant falls
within the safety-valve exception of § 3553(f).” United States v. Castaing-Sosa,
530 F.3d 1358, 1360 (11th Cir. 2008). A defendant is eligible for the safety-valve
exception only if, among other things, “the defendant has truthfully provided to the
Government all information and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a common scheme or
plan . . . .” 18 U.S.C. § 3553(f)(5). The burden is on the defendant to prove that he
has met all of the safety-valve factors. See Johnson, 375 F.3d at 1302.
Sac has failed to establish that the district court erred in denying safety-valve
relief. The district court found that Sac did not qualify for the safety valve
exception because he had not fulfilled the “tell-all” requirement for receiving
safety-valve relief insofar as he failed to provide the government with all the
information and evidence that he had concerning the charged offense. See United
States v. Yate, 176 F.3d 1309, 1310 (11th Cir. 1999) (discussing defendant’s
affirmative responsibility “to truthfully disclose to the government all information
and evidence that he has about the offense and all relevant conduct” under the
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safety-valve exception). For example, even though at least 917 marijuana plants
were growing in the house where he lived, Sac provided the government with no
information about the intended distribution of those plants. See Johnson, 375 F.3d
at 1302–03 (holding that district court properly determined that defendant did not
qualify for safety valve exception when he failed to disclose information about the
intended distribution of the 273 marijuana plants he was cultivating). “Given the .
. . large number of plants, the district court did not err in reasonably inferring that
[Sac] was growing the marijuana for distribution.” Id. at 1302. Accordingly, Sac
did not qualify for the safety valve exception because he failed to provide the
government with any information about the distribution.
We need not consider Sac’s remaining challenges to the reasonableness of
his sentence in light of our conclusion that the district court properly sentenced Sac
to the sixty-month mandatory minimum sentence. See United States v. Gallegos-
Aguero, 409 F.3d 1274, 1276 (11th Cir. 2005) (“We will reverse the district court
[for a sentencing error] only if the error was harmful.”).
IV.
Erickson contends that the district court erred in denying his motions for an
evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674.1 He
1
“Generally, a court’s decision about whether to hold an evidentiary hearing lies within
that court’s sound discretion and will be reviewed only for an abuse of discretion. We have not
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claims that statements in the search warrant affidavits regarding Francisco Sac
providing law enforcement with a map of the 100th Street property were false.
Erickson further asserts that the statements in the affidavits concerning utility
records for that property were also false.
“To be entitled to a Franks hearing, a defendant must make a ‘substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit,
and . . . the allegedly false statement is necessary to a finding of probable cause.’”
United States v. Sarras, 575 F.3d 1191, 1218 (11th Cir. 2009) (quoting Franks, 438
U.S. at 155–56, 98 S. Ct. at 2676). “[T]he substantiality requirement is not lightly
met.” United States.v. Arbolaez, 450 F.3d 1283, 1294 (11th Cir. 2006). As the
Supreme Court has explained:
To mandate an evidentiary hearing, the [defendant’s] attack must be
more than conclusory and must be supported by more than a mere
desire to cross-examine. There must be allegations of deliberate
falsehood or of reckless disregard for the truth, and those allegations
must be accompanied by an offer of proof. They should point out
specifically the portion of the warrant affidavit that is claimed to be
false; and they should be accompanied by a statement of supporting
reasons. Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily
stated a precise standard of review for a district court’s denial of a Franks hearing, and other
circuits are split on the issue.” United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006)
(citations omitted). Because we find no error under even a de novo standard of review, we need
not determine which standard of review applies. See id.10
explained. Allegations of negligence or innocent mistake are
insufficient.
Franks, 438 U.S. at 171, 98 S. Ct. at 2684.
The district court did not err in denying Erickson’s request for a Franks
hearing. Erickson’s attacks on the veracity of the affiants’ statements were
conclusory and unsupported by any proof. Erickson did not submit an affidavit
from Sac stating that he never provided law enforcement with a map of the 100th
Street property. Nor did Erickson offer any evidence establishing that the affiants’
statements concerning utility records for that property were false. Because
Erickson failed to offer any proof in support of his claims, the district court’s
denial of his request for a Franks hearing was not error.
V.
Erickson also contends that the district court erred in denying his motion to
suppress evidence obtained from his property located at 191st Avenue. Erickson
argues that the law enforcement obtained a search warrant for 191st Avenue by
relying upon unlawful observations made during a warrantless entry of that
property. “Because rulings on motions to suppress involve mixed questions of fact
and law, we review the district court’s factual findings for clear error, and its
application of the law to the facts de novo.” United States v. Jordan, 635 F.3d
111181, 1185 (11th Cir. 2011) (quotation marks omitted). “We also construe all facts
in the light most favorable to the prevailing party in the district court—here, the
government.” United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003).
The Fourth Amendment provides that: “The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .” U.S. Const. Amend IV. The Fourth
Amendment, however, “is not implicated by entry upon private land to knock on a
citizen’s door for legitimate police purposes unconnected with a search of the
premises.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006).
“Absent express orders from the person in possession, an officer may walk up the
steps and knock on the front door of any man’s castle, with the honest intent of
asking questions of the occupant thereof.” Id. (quotation marks omitted).
Here, several officers walked up to Erickson’s front door and knocked.
Erickson came out and instructed the officers to leave his property. En route to
Erickson’s door, the officers observed a pile of harvested marijuana root bases
approximately twenty-five yards from Erickson’s residence and marijuana residue
in a truck parked out front. The officers detained Erickson in the front yard while a
search warrant for the property was obtained. From their vantage point in the yard,
the officers could see inside of Erickson’s residence and observed survelliance
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monitors and insulation.
Erickson argues that the officers’ observations violated his Fourth
Amendment rights and tainted the the validity of the warrant issued to search his
property. We disagree. The officers approached Erickson’s residence to conduct a
“knock and talk.” See Taylor, 458 F.3d at 1204. Their plain view observations
while properly on the property for that purpose do not constitute a constitutional
violation. See id. For that reason, the inclusion of the officers’ observations in the
warrant affidavit did not taint the validity of the search warrant for Erickson’s
property.
VI.
Erickson also contends that the prosecutor engaged in prosecutorial
misconduct, violating his due process right to a fair trial. Ordinarily, “[w]e review
claims of prosecutorial misconduct de novo because they involve a mixed question
of law and fact.” United States v. Schmitz, 634 F.3d 1247, 1259 (11th Cir. 2011).
However, because Erickson raises his claim for the first time on appeal, we review
only for plain error.2 Id.“To find prosecutorial misconduct, a two-pronged test must be met: (1) the
2
Under the plain error standard of review, “(1) there must be error; (2) the error must be
plain; (3) the error must affect the appellant’s substantial rights; and (4) the error must seriously
affect the fairness, integrity, or public reputation of judicial proceedings.” United States v.
Pantle, 637 F.3d 1172, 1174 (11th Cir. 2011) (quotation marks omitted).
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remarks must be improper, and (2) the remarks must prejudicially affect the
substantial rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206
(11th Cir. 1991). “To establish prosecutorial misconduct for the use of false
testimony, a defendant must show the prosecutor knowingly used perjured
testimony, or failed to correct what he subsequently learned was false testimony,
and that the falsehood was material.” United States v. McNair, 605 F.3d 1152,
1208 (11th Cir. 2010); see also United States v. Dickerson, 248 F.3d 1036, 1041
(11th Cir. 2001) (explaining that “[t]he materiality element is satisfied if the false
testimony could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict” (quotation marks omitted)).
Erickson argues that the prosecutor committed prosecutorial misconduct
when he elicited testimony from Agent Andrews concerning Florida Department of
Revenue records from 2007 and 2008 showing that Erickson had no reported
income. Erickson asserts that Andrews’ testimony was misleading because he had
other sources of income during those years that he was not required to report to the
Florida Department of Revenue. He also claims that the prosecutor engaged in
misconduct by offering conflicting testimony from Agents Andrews and Riley
regarding where law enforcement found marijuana grow books on his properties.
Erickson has failed to establish plain error with respect to any of his claims
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of prosecutorial misconduct. Agent Andrews’ testimony concerning Erickson’s
Florida Department of Revenue records was not false. Erickson stipulated to the
accuracy of those records at trial. To the extent that any discrepancy existed in the
two agents’ testimony about the location at which marijuana grow books were
found, the discrepancy was not material. Agent Andrews testified that grow books
were found in Erickson’s office at his 191st. Avenue property. Agent Riley
testified that two books were found in Erickson’s office and that five books were
found in a trailer at his 187th Street property. The discrepancy in the agents’
testimony does not “undermine [our] confidence in the verdict.” See Dickerson,
248 F.3d at 1042. For these reasons, we conclude that Erickson has failed to
establish that the district court plainly erred in rejecting his claims of prosecutorial
misconduct.
VII.
Erickson contends that the district court erred at sentencing in holding him
accountable for 1,123 marijuana plants. Specifically, he argues that it was
improper for the district court to hold him accountable for the 917 marijuana plants
found at a property that his co-defendant, John Sager, owned. Erickson argues that
the district court should not have taken those plants into account in calculating his
guidelines range because they related to acquitted conduct. We review the district
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court’s interpretation of the sentencing guidelines de novo, and its factual findings
for clear error. United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005).
A district court may consider all relevant conduct in calculating a
defendant’s offense level. See United States v. Hamaker, 455 F.3d 1316, 1336
(11th Cir. 2006). Relevant conduct may include conduct for which the defendant
was acquitted. See United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005)
(explaining that a district court may take into account acquitted conduct at
sentencing as long as the government proves the conduct by a preponderance of the
evidence and the sentence imposed does not exceed the statutory maximum
authorized by the jury’s verdict). In the case of jointly undertaken criminal
activity, relevant conduct includes “all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B) (Nov. 2008).
The district court did not clearly err in holding Erickson accountable for the
917 marijuana plants found on Sager’s property. The record shows that Erickson
and Sager were involved in a marijuana grow operation. The plants at Sager’s
property were “reasonably foreseeable” to Erickson as part of that jointly
undertaken criminal activity. Erickson and Sager’s colloboration in the grow
operation was extensive. The government presented evidence establishing that
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Erickson and Sager had similar structures on their properties in furtherance of the
operation and co-owned a property. The district court did not err in holding
Erickson accountable for the plants found at both his and Sager’s properties.
For these reasons, we affirm Sac’s and Erickson’s convictions and
sentences.
AFFIRMED.
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