United States v. Rolando Garcia , 261 F. App'x 222 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12399 JAN 07 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00458-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO GARCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 7, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Rolando Garcia appeals his convictions for conspiracy to
distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B)(ii),
and possession with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(ii).
Garcia first argues that there was insufficient evidence to sustain his
convictions. Garcia relies on United States v. Littrell, 574 F.2d 828 (5th Cir.
1978),1 for the proposition that the government was required to exclude the
possibility of every reasonable hypothesis but that of guilt in order to prove guilt
beyond a reasonable doubt. Garcia states that the fact that he knew he was giving a
co-defendant a ride to retrieve illegal drugs did not rise to the standard under
Littrell. Garcia concedes that if he knew where the cocaine was hidden and he was
not entrapped into handling it, the evidence would support his convictions.
However, he argues that the inconsistent testimony of the government agents is the
only evidence establishing that he knew about the drugs. In addition, Garcia
emphasizes the facts that he had planned to stay home and do chores that day and
that he had no intention of being involved in a drug conspiracy. He also relies on
the fact that he rented a motel room for two, suggesting that there was not
sufficient evidence that he was part of the conspiracy.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
2
We review de novo the sufficiency of the evidence supporting a criminal
conviction. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). “At
this stage in the proceedings, we examine the evidence in the light most favorable
to the government, drawing all reasonable inferences and making all credibility
choices in the government’s favor.” Id. “[W]e will not disturb a guilty verdict
unless, given the evidence in the record, no trier of fact could have found guilt
beyond a reasonable doubt.” Id. (quotations omitted).
As we stated in United States v. Miranda,
To prove participation in a conspiracy, the government must have
proven beyond a reasonable doubt, even if only by circumstantial
evidence, that a conspiracy existed and that the defendant knowingly
and voluntarily joined the conspiracy. To satisfy this burden, the
government need not prove that the defendant knew all of the details
or participated in every aspect of the conspiracy. Rather, the
government must only prove that the defendant knew the essential
nature of the conspiracy. . . . To convict a defendant of possession
with intent to distribute controlled substances, the Government must
prove that he or she possessed drugs with the intent to distribute them.
425 F.3d 953, 959 (11th Cir. 2005) (citations and alterations omitted). Where the
presence of a large quantity of narcotics is clear and uncontested, the proof
required to establish the existence of a conspiracy and the defendant’s participation
therein would also suffice to prove his possession of the narcotics. United States v.
Cruz-Valdez, 773 F.2d 1541, 1544 (11th Cir. 1985).
“[E]ntrapment as a matter of law is a sufficiency of the evidence inquiry.
3
When an entrapment defense is rejected by the jury, our review is limited to
deciding whether the evidence was sufficient for a reasonable jury to conclude that
the defendant was predisposed to take part in the illicit transaction.” United States
v. Brown, 43 F.3d 618, 622 (11th Cir. 1995). We have held that “the
predisposition inquiry is a purely subjective one which asks the jury to consider the
defendant’s readiness and willingness to engage in the charged crime absent any
contact with the government’s officers or agents.” Id. at 624. “Predisposition may
be demonstrated simply by a defendant’s ready commission of the charged crime.”
Id. at 625 (citations omitted).
In the instant case, we conclude that the evidence adduced at trial permitted
a jury to find Garcia guilty. There was testimony that Garcia knew he was going to
pick up illegal drugs, drove a co-defendant to meet the seller, rented a motel room
under his own name, and retrieved the drugs from the seller’s truck. This evidence
was sufficient for a jury to find Garcia guilty of the conspiracy charge. Because it
was uncontested that there was nearly four kilograms of cocaine found in the truck,
there was also sufficient evidence to sustain Garcia’s conviction for possession
with intent to distribute cocaine. Furthermore, there was sufficient evidence for a
jury to reject Garcia’s entrapment defense because he was predisposed to commit
the offense before law enforcement became involved.
4
Relying on Fed.R.Evid. 702, relating to the admissibility of expert
testimony, Garcia argues secondly that it was error for the district court to deny his
request to voir dire Sgt. Lithgow as to his ability to speak Spanish. Garcia claims
that Sgt. Lithgow was an expert witness. He argues that because the district court
did not properly qualify Sgt. Lithgow as an expert witness and perform its
“gatekeeper” function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786 (1993), the jury was unable to analyze the credibility of
his testimony regarding the translation of Garcia’s post-arrest statements.
We review a district court’s decisions regarding the admission of expert
testimony and the denial of a Daubert hearing for abuse of discretion. United
States v. Hansen, 262 F.3d 1217, 1233 (11th Cir. 2001) (citations omitted).
However, because Garcia did not ask the district court to conduct a Daubert
hearing, we review that issue for plain error. Id. at 1233-34. Under plain-error
review, the defendant has the burden to show that there is an: (1) error; (2) that is
plain; and (3) that affects substantial rights. United States v. Olano, 507 U.S. 725,
732, 113 S. Ct. 1770, 1776 (1993). If these three elements are met, the court may
exercise its discretion to correct the error if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (quotations and
alteration omitted).
5
Under Fed.R.Evid. 702, “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert . . . may testify thereto in the form of
an opinion or otherwise.” Fed.R.Evid. 702. The Supreme Court in Daubert set
forth a trial judge’s obligation to ensure that expert testimony under Rule 702 is
both reliable and relevant. Daubert, 509 U.S. at 597, 113 S. Ct. at 2799.
We conclude from the record that Garcia’s reliance on Rule 702 and
Daubert is misplaced for the simple reason that Sgt. Lithgow was not offering
expert testimony. Thus, the district court did not commit reversible error by
refusing to allow Garcia to voir dire Sgt. Lithgow or failing to hold a Daubert
hearing on this issue.
For the above-stated reasons, we affirm Garcia’s convictions.
AFFIRMED.
6