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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14175
Non-Argument Calendar
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D.C. Docket No. 0:18-cr-60047-BB-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAURA QUERALES RUSSA,
IVONNE RUSSA MOSQUEDA,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(March 25, 2020)
Before JORDAN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
Ivonne Russa Mosqueda (“Mosqueda”) and her daughter, Laura Querales
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Russa (“Russa”), appeal their convictions for drug-related offenses, and Mosqueda
appeals her sentence. Mosqueda challenges the district court’s ruling that she
could not join a codefendant’s motion to suppress. She and Russa challenge the
district court’s decision to answer a jury question without their or their counsel’s
presence. The district court conceded error but found the error harmless; Russa
and Mosqueda argue that the error was not harmless. Mosqueda further argues that
her sentence was substantively unreasonable. After careful review, we affirm.
I. BACKGROUND1
A grand jury charged Mosqueda, Russa, and others with conspiracy to
distribute anabolic steroids, a controlled substance, in violation of
21 U.S.C. § 846;
possession of anabolic steroids with intent to distribute, in violation of
21 U.S.C.
§ 841(a)(1); and maintaining a drug-involved premises, in violation of
21 U.S.C.
§856(a)(1). Both pled not guilty.
Before trial, codefendant Hunter Soodak moved to suppress evidence law
enforcement obtained during a search of an apartment (the “Sheridan Street
apartment”) where the steroids were discovered. Soodak, Mosqueda, and Russa
were at the Sheridan Street apartment when the search occurred. The district court
held a hearing on the motion, during which Mosqueda’s counsel, in Mosqueda’s
1
Because we write for the parties, who are familiar with the facts, we recount only the
facts that are necessary to understand our disposition of this appeal.
2
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absence, moved to join Soodak’s motion. The district court denied the motion,
reasoning that Mosqueda had not filed a motion to suppress, was not present at the
hearing to consent to join Soodak’s motion, and had not filed a motion to adopt
Soodak’s motion. Although Mosqueda still had time to file a motion to suppress
before the pretrial motion deadline, she did not file one.
Several of Mosqueda’s and Russa’s codefendants—including, as relevant
here, Hugo Urdaneta Galvis (“Galvis”)—pled guilty. Mosqueda and Russa
together proceeded to a jury trial. At trial, Broward County Sheriff’s Office
detective Justin Colon testified that he participated in a controlled delivery of a
package to the Sheridan Street apartment. After Russa accepted delivery of the
package at the apartment, Colon conducted a protective sweep, where he
encountered Mosqueda, among others.
Colon obtained a search warrant for the residence and recovered substances
in pill and liquid form there. Some of the substances were labeled with “known
steroid names.” Doc. 346 at 18. 2 Colon came to know the names of steroids
through his training as a detective. The drugs were discovered alongside injection
needles, rubber gloves, empty packages with white powder residue, a scale, and a
mortar and pestle. Colon also found cardboard boxes filled with money, labeled
with the names of some of the people found at the apartment on the day of the
2
“Doc. #” refers to the numbered entry on the district court’s docket.
3
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search, including one labeled “Ivonne.”
Id. at 23. Colon sent the substances to a
lab for testing. Two experts in forensic chemistry testified that the substances
Colon obtained from the Sheridan Street apartment were anabolic steroids, all
controlled substances.
After the close of the government’s evidence, Mosqueda moved for a
judgment of acquittal, arguing that the government had failed to show that she
knew the substances were controlled, but the district court denied the motion.
Mosqueda, but not Russa, elected to testify. Mosqueda testified that she
went to work for Galvis, who owned a company called Sports Nutrition Center,
doing payroll and other accounting-related administration. Mosqueda knew that
Galvis’s company received shipments to the Sheridan Street apartment, but she
believed that the work they were doing was legal. At some point she began
receiving the shipments and diluting with oil the products she received. At least
some of the products would then be shipped out of the country. Mosqueda
understood that the products being sold by Sports Nutrition Center were products
for “people that did body sculpting or bodybuilding” and were legal “[v]itamins
and hormones.” Doc. 349 at 158-59. She testified that she knew the names of
several of the substances the company sold, but that she did not know that those
substances were controlled substances. Mosqueda thereafter renewed her motion
for judgment of acquittal, and the district court denied it.
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Mosqueda and Russa requested, and the district court gave, a “Theory of
Defense” jury instruction, which read:
Each Defendant contends that he or she is not guilty because he or she
lacked knowledge that he or she possessed or manufactured a controlled
substance . . . . If you have a reasonable doubt as to whether a
Defendant knew he or she was involved with a controlled substance,
then you must find the Defendant not guilty.
Doc. 350 at 149. During deliberations, the jury asked the district court a question:
It’s a Federal crime for anyone to possess a controlled substance . . .
anabolic steroids are [a] ‘control[led] substance[.]’ Does the defendant
need to have known that anabolic steroids were a control[led] substance
in order to be found guilty?
Doc. 195 at 2. Without consulting the parties, the court responded: “You are to
follow the jury instructions as given.”
Id. The jury found Mosqueda and Russa
guilty on all counts.
Russa and Mosqueda moved for a new trial, arguing that the district court
erred when it answered the jury’s question outside their presence and without
consulting with defense counsel. The district court acknowledged that it had erred,
but ruled that the error was harmless and denied the defendants’ motion.
As relevant to this appeal, the probation office calculated an advisory
guidelines range for Mosqueda of 57 to 71 months’ imprisonment. At sentencing,
Mosqueda sought a substantial downward variance, arguing that a guidelines-range
sentence created an unwarranted sentencing disparity between her sentence and
Galvis’s. Galvis, she argued, was the self-proclaimed leader of the conspiracy for
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which she was found guilty and another subsequent conspiracy. Galvis received a
sentence of 46 months’ imprisonment, and Mosqueda sought a lower sentence,
highlighting the fact that she was involved in only one of the conspiracies and had
cooperated with investigators after the search of the Sheridan Street apartment but
before she was charged in federal court. The district court acknowledged that
Galvis was the “ringleader,” Doc. 354 at 31, but found that giving Mosqueda the
same sentence as Galvis created no unwarranted sentencing disparity. Whereas
Galvis assisted the government and pled guilty—so that the government dropped
several charges against him and he received a number of sentencing reductions
(including for acceptance of responsibility)—Mosqueda went to trial. The district
court sentenced Mosqueda to 46 months’ imprisonment, an 11-month downward
variance from the bottom of her guidelines range. The court took into account the
fact that she went to trial and played a supervisory role in the scheme, along with
the facts that Mosqueda had medical challenges and no criminal history and that
the proceedings had “caused significant issues” for her 18-year old son. Doc. 354
at 31.
Mosqueda and Russa appealed.
II. DISCUSSION
On appeal Mosqueda challenges the district court’s ruling that she could not
join her codefendant’s motion to suppress. She and Russa challenge the district
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court’s decision to answer a jury question without their or their counsel’s presence,
arguing that the error was not harmless. They argue that the district court should
have said “yes” to the jury’s question. Mosqueda further argues that the error was
not harmless because there was insufficient evidence at trial that she knew the
steroids were a controlled substance. Finally, Mosqueda argues that her sentence
was substantively unreasonable because it failed to reflect the differences between
her conduct and that of her codefendant Galvis. We address these arguments in
turn.
A. The Motion to Suppress
We begin with Mosqueda’s challenge to the district court’s denial of her
codefendant Soodak’s motion to suppress. The government responds that
Mosqueda neither joined that motion nor filed one of her own, and therefore she
cannot now challenge the district court’s decision. We agree.
A defendant must move to suppress evidence before trial. Fed. R. Crim. P.
12(b)(3)(C). If she fails to do so before the court’s deadline for pretrial motions,
the court nonetheless may entertain the motion if the defendant shows good cause.
Fed. R. Crim. P. 12(c)(3). “No good cause exists if the defendant had all the
information necessary to bring a Rule 12(b) motion before the date set for pretrial
motions, but failed to file it by that date.” United States v. Curbelo,
726 F.3d
1260, 1267 (11th Cir. 2013) (internal quotations omitted); see also Rakas v.
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Illinois,
439 U.S. 128, 134 (1978) (“There is no reason to think that a party whose
rights have been infringed will not, if evidence is used against him, have ample
motivation to move to suppress it.”). And a defendant who fails to make a timely
suppression motion cannot raise that claim for the first time on appeal. United
States v. Lall,
607 F.3d 1277, 1288 (11th Cir. 2010).
Mosqueda had the opportunity, but failed, to file a motion to adopt Soodak’s
motion to suppress or file a motion to suppress of her own. She never attempted to
show good cause to file a belated motion in the district court. As a result, she
cannot now argue that evidence from the Sheridan Street apartment should have
been suppressed. See
id. We therefore do not consider Mosqueda’s challenge to
the district court’s denial of Soodak’s motion to suppress.3
B. The Jury Question
Mosqueda and Russa argue that the district court erred in denying their
motion for new trial. 4 They argue that the court’s error in ensuring their presence
3
In her reply brief, Mosqueda argues three reasons why she had good cause for not filing
a motion to suppress or a motion to adopt Soodak’s motion to suppress. First, the issue was
preserved for appellate review when she orally requested to join Soodak’s motion at the
suppression hearing; second, she failed to file her own motion because she wanted to preserve
her limited funds and the district court had denied Soodak’s motion; and third, she proceeded in
good faith. We generally do not consider issues raised for the first time in a party’s reply brief.
United States v. Levy,
379 F.3d 1241, 1244 (11th Cir. 2004). Moreover, the Federal Rules of
Criminal Procedure require Mosqueda to show good cause to the district court, not to this Court.
Fed. R. Crim. P. 12(c)(3). Even if we were to consider them, Mosqueda’s arguments in her reply
brief would not persuade us to reach a different result.
4
We review a district court’s denial of a motion for a new trial for an abuse of discretion.
United States v. Russo,
717 F.2d 545, 550 (11th Cir. 1983). Under the abuse-of-discretion
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when answering the jury’s question prejudiced their defense. Mosqueda and Russa
contend that, if their counsel had been consulted, counsel would have requested
that the district court answer the jury’s question in the affirmative—that the jury
would have to find that each defendant “knew . . . she was involved with a
controlled substance.” Doc. 350 at 149. They cite Chief Justice Roberts’s
concurrence in McFadden v. United States,
135 S. Ct. 2298, 2307-08 (2015)
(Roberts, C.J., concurring), for the proposition that in controlled substances
offenses under
21 U.S.C. § 841(a)(1), knowledge that a substance is “controlled” is
an element of the offense that the government must prove. Mosqueda further
argues that the error was not harmless because it went to the heart of her defense—
that she did not know the anabolic steroids were controlled substances. We are not
persuaded by either argument.
First, Mosqueda and Russa are wrong that Chief Justice Roberts’s opinion in
McFadden supports their assertion that the district court should have responded
“yes” to the jury’s question whether the defendants “need[ed] to have known that
anabolic steroids were a control[led] substance in order to be found guilty.” Doc.
195 at 2. Chief Justice Roberts opined that knowledge that a substance was
controlled “arguably” is required to sustain a conviction under § 841(a)(1),
standard, we must affirm unless we find that the district court has made a clear error of judgment
or has applied the wrong legal standard. United States v. DuBose,
598 F.3d 726, 731 (11th Cir.
2010).
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McFadden,
135 S. Ct. at 2308, but his was not the majority opinion. The majority
opinion reasoned that “the knowledge requirement [of § 841(a)(1)] may also be
met by showing that the defendant knew the identity of the substance he
possessed.” Id. at 2304 (majority opinion). The majority’s statement was dicta,
see id. at 2308 (Roberts, C.J., concurring), but as we have said before, “there is
dicta, and then there is Supreme Court dicta.” Schwab v. Crosby,
451 F.3d 1308,
1325 (11th Cir. 2006).
In any event, even if we “cast aside” McFadden’s dicta,
id. at 1325 (internal
quotation marks omitted), we would not reverse because Mosqueda’s and Russa’s
own “Theory of Defense” jury instruction, which the court gave, instructed that the
jury could only convict if it found, beyond a reasonable doubt, that each defendant
“knew . . . she was involved with a controlled substance.” Doc. 350 at 149. The
instruction therefore was a correct statement of the law under Chief Justice
Roberts’s narrow view of § 841(a)(1)’s knowledge requirement. The district court
answered the jury’s question by referring the jury to the instructions the court had
given them. “We do not approve of any unjustified communication between the
court and the jury without notifying counsel and therefore do not approve of the
procedure followed by the trial judge in this case.” United States v. Bentacourt,
734 F.2d 750, 759 (11th Cir. 1984). Indeed, the district court conceded that it had
committed error by answering the jury’s question outside the presence of the
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defendants and their counsel. Nevertheless, “the error was harmless” because “the
jury had a complete copy of all charges in the jury room” and “could refer back to
the charges and find the answers they needed,”
id., answers that reflected the more
exacting knowledge standard that the defendants advocated.
Second, we reject Mosqueda’s argument that the district court’s error
prejudiced her defense because there was insufficient evidence to support a finding
that she knew the substances were controlled substances. See United States v.
Brantley,
68 F.3d 1283, 1291 (11th Cir. 1995) (explaining that an error under
Federal Rule of Criminal Procedure 43, which requires a defendant’s presence at
all stages of his trial, including a court’s response to jury questions, is harmless “if
the court takes sufficient precautions to ensure against prejudice to the defendant’s
interests”). Although made in the context of the denial of her motion for new
trial,5 Mosqueda made a freestanding sufficiency-of-the-evidence challenge. We
review de novo the sufficiency of the evidence, viewing the evidence in the light
most favorable to the government and making all inferences and credibility
determinations in favor of the government and the jury’s verdict. United States v.
Garcia,
405 F.3d 1260, 1269 (11th Cir. 2005). We must affirm “unless, under no
5
The government argues that the Court should disregard Mosqueda’s argument because
it was not adequately briefed. We disagree. Mosqueda adequately briefed the issue by “plainly
and prominently” raising it in a separate section of her brief. United States v. Jernigan,
341 F.3d
1273, 1283 n.8 (11th Cir. 2003); see Mosqueda Initial Br. at 30-38 (challenging the sufficiency
of the evidence of knowledge under heading “Sufficiency of the Evidence”).
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reasonable construction of the evidence, could the jury have found the [defendant]
guilty beyond a reasonable doubt.”
Id. To sustain a conviction for possession with
intent to distribute under
21 U.S.C. § 841(a)(1), the government must prove
knowing possession of a controlled substance with intent to distribute it. United
States v. Figueroa,
720 F.2d 1239, 1241-42 n.1, 1244 (11th Cir. 1983). We
assume for our purposes that Mosqueda is correct and that the government was
required to prove she knew the substances at issue were controlled substances.
Mosqueda argues that the government’s witnesses needed special training to
discern whether the substances at issue were controlled substances, so there was no
evidence that she, a layperson, would have that knowledge. Importantly, however,
Mosqueda testified in her own defense. When a defendant elects to testify, a jury
may disbelieve her statements and take those statements as substantive evidence of
guilt. United States v. Brown,
53 F.3d 312, 314 (11th Cir. 1995); see United States
v. Garcia-Bercovich,
582 F.3d 1234, 1238 (11th Cir. 2009) (explaining that a jury
is entitled to make credibility determinations and we assume the jury made these
determinations in a way that supports the verdict). Mosqueda testified that she did
not know the substances she handled were controlled substances. The jury was
entitled to disbelieve her and take her testimony as evidence that she did have the
requisite knowledge. Brown,
53 F.3d at 314. The jury’s inference that Mosqueda
knew the substances were controlled does not conflict with the government’s
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evidence—it is not a stretch to infer that a defendant engaging in a scheme with
others to sell drugs would know the substances she was handling were illegal, even
though trained experts uncovering the scheme would need to verify through testing
the type of substance involved.
For these reasons, we are unpersuaded that the district court’s error in
answering the jury’s question outside the presence of the parties prejudiced the
parties.
C. Mosqueda’s Sentence
Lastly, Mosqueda contends that her sentence is substantively unreasonable
because it is out of step with that of her codefendant Galvis. According to
Mosqueda, Galvis—who founded Sports Nutrition Center, designed its business
model, ordered the steroids from overseas, taught Mosqueda how to mix the
substances, and continued engaging in unlawful activity after police searched the
Sheridan Street apartment—was “significantly more culpable” yet received the
same sentence she did, 46 months. Mosqueda Appellant’s Br. at 38-39.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard, considering the totality of the circumstances and the
sentencing factors set forth in
18 U.S.C. § 3553(a). Gall v. United States,
552 U.S.
38, 41 (2007). As relevant here, one factor the district court must consider is the
need to avoid unwarranted sentencing disparities.
18 U.S.C. § 3553(a)(6). The
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party challenging a sentence bears the burden of proving the sentence is
unreasonable. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010).
A district court imposes a substantively unreasonable sentence when it fails
to afford consideration to relevant factors that were due significant weight, gives
significant weight to an improper or irrelevant factor, or commits a clear error of
judgment in considering the proper factors. United States v. Irey,
612 F.3d 1160,
1189 (11th Cir. 2010) (en banc). Although generally the weight to be accorded
any given § 3553(a) factor is a matter committed to the sound discretion of the
district court, United States v. Williams,
526 F.3d 1312, 1322 (11th Cir. 2008), a
district court commits a clear error of judgment when it “considers the proper
factors but balances them unreasonably” and imposes a sentence that “does not
achieve the purposes of sentencing as stated in § 3553(a),” Irey,
612 F.3d at 1189-
90 (internal quotation marks omitted). We will vacate a sentence 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.” Id. at
1190.
We cannot agree with Mosqueda that the district court erred in sentencing
her to 46 months’ imprisonment, the same term her codefendant Galvis received.
“Disparity between the sentences imposed on codefendants is generally not an
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appropriate basis for relief on appeal.” United States v. Regueiro,
240 F.3d 1321,
1325-26 (11th Cir. 2001). This general rule reflects Congress’s choice to enact the
Sentencing Guidelines “to eliminate disparities in the sentences meted out to
similarly situated defendants” rather than co-defendants in a single case. United
States v. Chotas,
968 F.2d 1193, 1197 (11th Cir. 1992). “The guidelines,
structured to account for relative culpability and differences in prior records of
defendants, demonstrate that the Sentencing Commission fully anticipated
sentencing disparity between defendants involved in the same offense.” Id.; see
also
18 U.S.C. § 3553(a)(6) (instructing sentencing courts to consider “the need to
avoid unwarranted sentencing disparities among defendants with similar records
who have been found guilty of similar conduct”).
Here, although Mosqueda argues that Galvis was more culpable, he pled
guilty rather than proceeding to trial. As a result, unlike in Mosqueda’s case,
several of the charges against him were dismissed and he received a reduction for
acceptance of responsibility. The district court took into account those
circumstances just as it accounted for Mosqueda’s unique circumstances. On the
one hand, she went to trial and played a supervisory role in the conspiracy; on the
other hand, she had no criminal history, suffered medical issues, and had a son to
care for. We therefore see no occasion here to disturb our general rule that
disparity between codefendants’ sentences does not provide the basis for relief.
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See Williams,
526 F.3d at 1322; see Regueiro,
240 F.3d at 1325-26.
III. CONCLUSION
For the reasons above, we affirm Mosqueda’s conviction and sentence and
Russa’s conviction.
AFFIRMED.
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