United States v. Viramontes , 419 F. App'x 938 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12808 MARCH 28, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:08-cr-00363-TWT-RGV-19
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff - Appellee,
versus
JUAN G. VIRAMONTES,
a.k.a. Maldito,
lllllllllllllllllllllDefendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 28, 2011)
Before CARNES, KRAVITCH and BLACK, Circuit Judges.
PER CURIAM:
Juan Viramontes appeals both his convictions and the resulting sentence
stemming from his involvement in a major marijuana and cocaine distribution ring
operating between Mexico and Atlanta, Georgia. Following a government
investigation of the ring, the grand jury handed down a long, multi-defendant
indictment that charged Viramontes in four different counts. He pleaded not
guilty and his case proceeded to a jury trial.
The government presented evidence that Viramontes worked for the drug
ring as a truck driver, helping transport drug proceeds from Atlanta to Texas in his
tractor-trailer. The jury found him guilty of the following: (1) conspiracy to
possess with intent to distribute at least 5 kilograms of cocaine and/or 1,000
kilograms of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(ii),
and (vii); (2) conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h); and (3) money laundering in the amounts
of $1.1 million and $1.5 million, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and
2. The district court entered judgment on the jury verdict and sentenced
Viramontes to 235 months imprisonment. He now appeals both his convictions
and his total sentence, raising six different issues with this Court. We consider
each contention and the relevant facts in turn.
I.
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Viramontes first contends that the district court abused its discretion in
allowing Officer David Noe of the Drug Enforcement Administration and
Sergeant Blake Swicord of the Georgia State Patrol to testify as experts under
Federal Rule of Evidence 702, and in overruling Viramontes’ objection that their
testimony violated Rule 704(b) because they impermissibly opined about his
mental state in relation to the underlying offenses.
Officer Noe testified at trial that his background included the following: 27
years of experience in law enforcement, 23 of which had been spent in narcotics
investigations; numerous classes in drug investigation and identification;
considerable experience with investigating Mexico-based drug trafficking
organizations; and familiarity with the code language that drug traffickers use in
wiretaps and the current wholesale prices of narcotics on the Atlanta market.
After the court accepted Noe as an expert witness in the field of Mexico-based
drug rings operating in Atlanta, Noe testified about the operational details of those
organizations, including the fact that Mexican drug rings commonly transport cash
proceeds from the United States back to Mexico, where it is easier to conceal the
origins of the money. Noe added that the transporters of the money are
“commonly aware” of the assistance they are providing to the drug rings.
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The government also relied on Georgia Patrolman Sergeant Swicord in
making its case, offering him as an expert witness in commercial motor vehicle
drug trafficking and money laundering. Swicord testified that he worked in a
specialized unit that conducted operations on the interstates around Atlanta. His
duties involved stopping “thousands” of commercial vehicles such as tractor-
trailers and seizing large sums of money and narcotics. After the court accepted
him as an expert, Swicord testified about a government surveillance videotape that
was played in court and showed Viramontes picking up a delivery in his tractor
trailer. Swicord pointed to numerous suspicious details about Viramontes’
behavior that were “inconsistent with” his picking up a legitimate load. Those
details included the fact that he opened only one of the two trailer doors to load,
which meant that a forklift could not be used and cargo had to be loaded by hand.
Swicord also pointed out that the entire loading took only four minutes and that
Viramontes did not receive a bill of lading or inspect the cargo.
We review a district court’s decision to admit expert testimony for an abuse
of discretion. United States v. Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005).
Under the abuse of discretion standard, the district court is allowed a range of
choices, and we will affirm unless the district court applied the wrong law,
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followed the wrong procedure, relied on clearly erroneous facts, or committed a
clear error in judgment. Id. at 1265–66.
Under Rule 702, expert testimony is admissible if (1) the expert is qualified
to testify regarding the subject matter of his testimony; (2) the methodology that
the expert used to reach his conclusion is sufficiently reliable; and (3) the expert’s
testimony will assist the trier of fact in understanding the evidence or in
determining a fact at issue. United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004) (en banc). We have also recognized the “well-established rule that an
experienced narcotics agent may testify as an expert 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 omitted).
Federal Rule of Evidence 704 generally allows testimony pertaining to the
ultimate issue, except that it forbids an expert witness from stating “an opinion or
inference” as to the mental state or condition of a criminal defendant that
constitutes an element of the crime charged. Fed.R.Evid. 704. We have
distinguished between an expert expressly stating an inference, which is
impermissible under Rule 704(b), and an expert leaving the inference for the jury
to draw, which is permissible. United States v. Steed, 548 F.3d 961, 977 (11th
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Cir. 2008). In Steed we held that Rule 704(b) did not bar a DEA agent’s
testimony that “it would be unlikely [that] crew members aboard a vessel carrying
a large quantity of contraband would be unaware of its presence,” because the
agent did not expressly state the inference that the defendants were aware of the
contraband. Id.We hold that the district court did not abuse its discretion in allowing
Officer Noe and Sergeant Swicord to testify as experts. The extensive training and
experience of both officers was a sufficient basis for the court to conclude that
they were qualified to render expert opinions. Furthermore, the testimony the
officers did provide was not in violation of Rule 704(b). Although that testimony
certainly gave rise to an inference that Viramontes knew he was transporting drug
money, neither officer directly stated that Viramontes knew that; instead they left
that inference for the jury to draw on its own. See Steed, 548 F.3d at 977.
II.
Viramontes next contends that the district court abused its discretion by
allowing Abraham Romero, a co-conspirator, to interpret recorded telephone
conversations between other co-conspirators, including Viramontes. Romero was
not a party to the calls himself, and Viramontes’ counsel objected to Romero’s
testimony in part on that ground. The court overruled the objection, however,
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allowing Romero to testify about the meaning of various code words and jargon
used in the calls.
We review for abuse of discretion the district court’s decision to admit or
exclude evidence. United States v. Smith, 122 F.3d 1355, 1357 (11th Cir. 1997).
Under Federal Rule of Evidence 701, opinion testimony offered by a lay witness is
admissible when the opinion is “(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 [under Rule 702].” Fed.R.Evid. 701. Further, courts have
“often allowed lay witnesses with similar inside knowledge to give their opinions
as to the meaning of ‘code words’ used by fellow conspirators in taped
conversations.” United States v. Gaines, 170 F.3d 72, 77 (1st Cir. 1999); see also
United States v. Awan, 966 F.2d 1415, 1428–31 (11th Cir. 1992) (finding no
reversible error in trial court’s decision to allow undercover agent to offer lay
opinion testimony interpreting telephone calls to which he had been a party);
United States v. Flores, 63 F.3d 1342, 1359 (5th Cir. 1995) (“By listening to the
tapes, the [testifying] conspirators gained first hand knowledge of these
conversations, which were admissible as co-conspirator statements . . . Their
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opinions had a rational connection to this factual basis because they were members
of the conspiracy and familiar with the events being discussed.”).
The district court did not abuse its discretion in allowing Romero to
interpret, as a lay witness, the telephone conversations among co-conspirators.
Romero’s testimony was rationally based on his perception as an insider to the
conspiracy and was helpful for interpreting the coded conversations of his fellow
drug traffickers.
III.
Viramontes next contends that the district court abused its discretion in
failing to give the jury a “good character” instruction that he had proposed. At
trial Viramontes did not testify or proffer any good character evidence. The sole
ground his counsel relied upon in requesting the good character instruction was
that the jury could draw inferences from the state’s case-in-chief that Viramontes
had no prior criminal record and that his “papers and documents appear[ed] to be
in order.”
We review for abuse of discretion a district court’s refusal to give a jury
instruction that is requested by the defense. United States v. Chastain, 198 F.3d
1338, 1350 (11th Cir. 1999). Generally, a defendant must show the following in
order for the denial of a requested jury instruction to be reversible error: the
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instruction “(1) was a correct statement of the law; (2) was not adequately covered
in the instructions given to the jury; (3) concerned an issue so substantive that its
omission impaired the accused’s ability to present a defense; and (4) dealt with an
issue properly before the jury.” United States v. Brazel, 102 F.3d 1120, 1139
(11th Cir. 1997) (quotation marks omitted). Regarding the fourth prong, the
defendant needs to present sufficient evidence to entitle himself to the good
character charge because the law does not invest in him a presumption of good
character. United States v. Thomas, 676 F.2d 531, 536–37 (11th Cir. 1982).
The record clearly shows that Viramontes did not testify or proffer any
evidence as to his good character at trial. Given that, the district court did not
abuse its discretion in denying his request for a good character instruction.
IV.
Viramontes has another challenge to the jury instructions: he contends the
district court erred in giving the jury the pattern charge on deliberate ignorance.
That charge provided in relevant part:
[Y]ou may find that a Defendant acted knowingly if you find beyond
a reasonable doubt either: One, that the Defendant actually knew that
he possessed money from distribution of a controlled substance; or
two, that he deliberately closed his eyes to what he had every reason
to believe was the fact.
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He argues that the charge was inappropriate because the evidence pointed either to
no knowledge or actual knowledge on his part. In making the objection at trial,
Viramontes also argued that the pattern instruction was “impermissibly burden-
shifting.” The court overruled the objection, and the record shows that in addition
to charging on deliberate ignorance, the court also charged the jury on the
alternative theory of actual knowledge.
“We review the legal correctness of a jury instruction de novo, but defer on
questions of phrasing absent an abuse of discretion.” United States v. Prather, 205
F.3d 1265, 1270 (11th Cir. 2000) (citation omitted). Although a district court
should not instruct a jury on deliberate ignorance when the evidence supports only
actual knowledge or no knowledge, that instruction is appropriate “when the facts
support the inference that the defendant was aware of a high probability of the
existence of the fact in question and purposely contrived to avoid learning all of
the facts in order to have a defense in the event of a subsequent prosecution.”
United States v. Schlei, 122 F.3d 944, 973 (11th Cir. 1997) (ellipsis omitted). And
at any rate, a deliberate ignorance instruction is “harmless error where the jury was
also instructed and could have convicted on an alternative, sufficiently supported
theory of actual knowledge.” Steed, 548 F.3d at 977–78.
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Viramontes’ arguments are without merit. As to his concern that the pattern
deliberate ignorance charge impermissibly shifts the burden of proof, we note that
the language of the charge itself puts on the government the burden of proving
deliberate ignorance beyond a reasonable doubt. Moreover, even if we assume for
the sake of the argument that the district court did err in giving the deliberate
ignorance charge, that error was harmless. The jury was also instructed on the
alternative theory of actual knowledge, and there was sufficient evidence for the
jury to conclude that Viramontes actually knew that he was transporting drug
proceeds. See Steed, 548 F.3d at 977–78; see also United States v. Stone, 9 F.3d
934, 935 (11th Cir. 1993) (concluding that “any error in giving [a deliberate
ignorance] charge in the absence of sufficient evidence is harmless when the
instruction itself requires, as a precondition to its application, proof beyond a
reasonable doubt of deliberate ignorance”).
V.
Viramontes next contends that his total sentence of 235 months
imprisonment was substantively unreasonable. His main argument is that other co-
defendants who drove trucks for the drug ring and were indicted for their
participation did not receive as lengthy a sentence as he did.
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Viramontes’ PSR calculated that his Total Offense Level was 38 and his
criminal history category was I. That made for an advisory guidelines range of 235
to 293 months. Although Viramontes made numerous objections to the PSR
calculations at trial, all of which the district court overruled, he makes clear that he
is not renewing those objections now. He concedes that the district court “did the
calculations ‘by the numbers’ and all the rulings can be justified in themselves.”
We review the reasonableness of a defendant’s sentence under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 56, 128 S.Ct. 586, 600
(2007). The burden of establishing that a sentence is unreasonable lies with the
party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005). “[W]hen the district court imposes a sentence within the advisory
Guidelines range, we ordinarily will expect that choice to be a reasonable one.” Id.But whatever the sentence, in reviewing its reasonableness we must consider “the
totality of the facts and circumstances,” and we will reverse “if, but only if, we are
left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Irey, 612 F.3d 1160, 1189, 1190 (11th Cir. 2010) (en banc)
(quotation marks omitted).
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One of the § 3553(a) factors requires the sentencing court to consider the
need to avoid unwarranted sentencing disparities among similarly situated federal
defendants. 18 U.S.C. § 3553(a)(6). But “[w]e have held that defendants who
cooperate with the government and enter a written plea agreement are not similarly
situated to a defendant who provides no assistance to the government and proceeds
to trial.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (citing
United States v. Williams, 526 F.3d 1312, 1323-24 (11th Cir. 2008)). Not only
that, but: “There is no unwarranted disparity even when the sentence the
cooperating defendant receives is substantially shorter.” Id. (emphasis added)
(quotation marks omitted).
Our review of the record and the 3553(a) factors does not leave us with the
“definite and firm conviction” that the district court abused its discretion in
imposing a sentence of 235 months. For one, that sentence was at the low end of
the applicable guidelines range. For another, Viramontes was not similarly-
situated to the other drivers, all of whom received less time. As the government
argues to this Court, and as the district court itself noted at the sentence hearing,
the other drivers all pleaded guilty and received reductions for acceptance of
responsibility and safety-valve relief. In addition, Viramontes was convicted of
more counts than the other drivers were, he transported more money than they did,
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and he did so more often. It was entirely reasonable that he received a longer
sentence.
VI.
Finally, Viramontes contends the district court abused its discretion in
denying his request to review the PSRs of all the other co-defendant truck drivers.
His counsel filed a motion to access those PSRs before the sentence hearing, and at
the hearing itself he asserted that he needed them in order to develop his argument
that his sentencing range was disproportionately higher than that of the other truck
drivers in the conspiracy. The government responded that there was “really no
mystery” as to what had happened at the sentence hearings of Viramontes’ co-
defendants and as to how their sentences had been determined. Further the
government provided Viramontes with two of those PSRs on the spot, and the court
allowed him a fifteen-minute recess to review them.
We review the district court’s exercise of its discretion to disclose a PSR for
an abuse of discretion. United States v. Gomez, 323 F.3d 1305, 1307 (11th Cir.
2003). The “general presumption” is that courts will not grant third parties access
to the PSRs of other individuals due in part to a concern that disclosure would have
a “chilling effect on the willingness of various individuals to contribute
information that will be incorporated into the report.” Id. at 1307–08 (quotation
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marks omitted). But in Gomez we also observed that “[o]ther circuit courts have
determined that a third party requesting disclosure of a [PSR] must demonstrate a
compelling, particularized need for disclosure,” and we assumed for the sake of our
analysis in that case that a “compelling need test” controlled the release of PSR
information in this Circuit as well. Id. at 1308.
But whatever the test is in this circuit, Viramontes has not shown sufficient
need for the disclosure of the other PSRs, let alone compelling need. His counsel
requested them in order to develop the argument that Viramontes’ sentence was
disproportionately higher than the sentences that other co-conspirator truck drivers
received. But as we have already discussed, Viramontes was not similarly-situated
to those other co-conspirators. The additional PSRs, even if they had been
revealed, would not have helped him make the argument that his sentence was
disproportionate.1
Finding no error on that ground or any other, we affirm Viramontes’
convictions and his total sentence.
AFFIRMED.
1
Viramontes has abandoned any other challenge to the procedural reasonableness of his
sentence by failing to provide sufficient argument or legal support in his brief. See United States
v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006).
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