United States v. Jose Escalante , 221 F. App'x 946 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 6, 2007
No. 05-16366
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00376-CR-2-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ESCALANTE,
ALEJANDRO FLORES,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(April 6, 2007)
Before BIRCH and PRYOR, Circuit Judges, and COVINGTON,* District Judge.
*
The Honorable Virginia M. Hernandez Covington, United States District Judge for the
Middle District of Florida, sitting by designation.
PER CURIAM:
Jose Escalante and Alejandro Flores appeal their convictions for drug
trafficking offenses, and Flores challenges his life sentence. We affirm.
I. BACKGROUND
On June 21, 2004, agents of the Drug Enforcement Agency received
information that two suspected drug traffickers, Jose Escalante and Eduardo
Garcia, were flying from Texas to Atlanta, but a surveillance team lost sight of the
men after they arrived at the Atlanta airport and boarded a rental car shuttle. On
July 14, 2004, Escalante and Garcia again arrived at the Atlanta airport, rented a
sport utility vehicle, and drove to a hotel north of the airport. That night, the men
drove 25 miles south to a truck stop on Interstate 85 near the City of Fairburn.
DEA agents saw the men get out of the SUV while using their cell phones, check
the trunk of the SUV, and enter the restaurant. The men sat near a window while
they consumed a beverage and used their cell phones, then hurried out of the
restaurant and drove back toward the interstate. Escalante and Garcia parked the
SUV near a tractor trailer that was stopped on the shoulder of the I-85 northbound
on-ramp. DEA agents saw several people talking and interacting between the two
vehicles. After about ten minutes, the SUV drove onto I-85 toward Atlanta.
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Officer Jody Thomas then approached the tractor trailer. Thomas identified
the two men in the truck as Alejandro Flores and Steve Serdando-Sandoval and
began to question them. Flores told Thomas that he was hauling a load of
mangoes from Texas to New Jersey and the driver of the SUV had stopped
because he thought the truck had broken down. Upon further questioning, Flores
admitted that he knew the men in the SUV, had spoken with them on his cell
phone, and had given them twenty-three bundles of drugs. After a short chase,
DEA agents stopped the SUV and arrested Escalante and Garcia. Agents seized
from the trunk of the SUV two duffel bags containing 23 two-kilogram bundles of
cocaine. They also seized two cell phones from Escalante. Flores and Sandoval
were then arrested.
A federal grand jury charged Escalante, Flores, Garcia, and Sandoval with
several drug trafficking offenses. All four men were charged with conspiracy to
possess with intent to distribute at least 15 kilograms of a substance containing
cocaine, 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(ii), possessing with intent to
distribute at least 15 kilograms of a substance containing cocaine, 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)(ii), and traveling in interstate commerce with the intent to
promote a drug trafficking crime, 18 U.S.C. § 1952(a)(3). Escalante and Garcia
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were also charged with using a communication facility to commit a drug
trafficking crime. 21 U.S.C. §§ 843(b), 843(d)(1).
Before trial, Flores moved to suppress his statements, and Escalante moved
to suppress the drug evidence. The district court denied the motions. Escalante,
Flores, and Sandoval were jointly tried.
DEA Special Agent Keith Cromer was qualified as an expert witness
regarding Mexican drug trafficking organizations. Cromer testified that these
organizations employ load coordinators who use prepaid cell phones to
communicate with truck drivers and evade law enforcement, and members of these
organizations do not include outsiders when they are transporting drugs. Agent
Cromer also testified about his surveillance of the defendants the night they were
arrested.
Officer Thomas testified about Flores’s confession and stated that no one
else had heard the confession. Flores did not sign a Miranda waiver, and Thomas
did not include the confession in his written report. At the close of the
government’s case, the court denied the defendants’ motions for a judgment of
acquittal.
Escalante and Sandoval then testified in their own defense. Escalante
testified that Garcia did not tell him why he wanted Escalante to travel with him
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and he went to Atlanta with Garcia because Atlanta was “nice.” Escalante denied
observing the exchange at the tractor trailer, seeing the duffle bags, or knowing
anything about Garcia’s purposes.
None of the defendants objected to the jury instructions, which included an
instruction on deliberate ignorance. The jury acquitted Sandoval and convicted
Escalante and Flores on all the counts. The jury also found that Escalante and
Flores possessed and conspired to possess five kilograms or more of cocaine.
Because Flores had two prior felony drug convictions, he was subject to a
mandatory minimum life sentence. 21 U.S.C. § 841(b)(1)(A)(ii). The court
sentenced Flores to life imprisonment for the drug trafficking counts and 60
months’ imprisonment for the promotion count, to be served concurrently.
II. STANDARDS OF REVIEW
The following standards of review govern this appeal. “We review for
abuse of discretion the district court’s decisions regarding the admissibility of
expert testimony and the reliability of an expert opinion.” United States v. Frazier,
387 F.3d 1244, 1258 (11th Cir. 2004) (en banc). Because Escalante and Flores did
not object in the district court, we review their argument about the jury
instructions for plain error. See United States v. Meester, 762 F.2d 867, 879-80
(11th Cir. 1985). We review de novo the sufficiency of the evidence, viewing the
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evidence in the light most favorable to the government. United States v. Miles,
290 F.3d 1341, 1355 (11th Cir. 2002). We review the denial of a motion to
suppress under a mixed standard of review, reviewing findings of fact for clear
error and the application of law to those facts de novo. United States v. Desir, 257
F.3d 1233, 1235-36 (11th Cir. 2001). We review a sentence for constitutional
errors de novo. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
III. DISCUSSION
We are asked to resolve six issues in this appeal. Escalante and Flores both
argue that (1) Special Agent Cromer’s expert testimony should not have been
admitted; and (2) the jury should not have been instructed on deliberate ignorance.
Flores also argues that (3) his confession should have been suppressed; (4) the
evidence was insufficient to support his convictions; (5) the Sixth Amendment
was violated when the court imposed the statutory mandatory minimum sentence
based on Flores’s prior convictions; and (6) the mandatory minimum sentence was
erroneous because it was not proved to the jury that Flores knowingly and
intentionally possessed cocaine. All these arguments fail. We discuss each in
turn.
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A. Special Agent Cromer’s Expert Testimony on Mexican
Drug Trafficking Organizations Was Proper.
The district court did not abuse its discretion when it allowed Special Agent
Cromer to testify as an expert about the structure and operations of Mexican drug
trafficking organizations. “[A]n experienced narcotics agent may testify about the
significance of certain conduct or methods of operation unique to the drug
distribution business.” United States v. Butler, 102 F.3d 1191, 1199 (11th Cir.
1997). We consistently allow this kind of testimony, see United States v. Cross,
928 F.2d 1030, 1050 (11th Cir. 1991) (collecting cases), because ordinary law
enforcement techniques are reliable methods and such testimony may be helpful to
a jury’s understanding of certain conduct. See Fed. R. Evid. 702; Frazier, 387
F.3d at 1260; United States v. Garcia, 447 F.3d 1327, 1335 (11th Cir. 2006).
Cromer’s expert testimony did not include his opinions about what he saw and
heard in this case, and it was not an abuse of discretion to allow Agent Cromer to
testify as a fact witness after his expert testimony concluded. Cf. United States v.
Dukagjini, 326 F.3d 45, 54 (2d Cir. 2003). Finally, Agent Cromer’s testimony did
not invite an impermissible inference of guilt in violation of Federal Rule of
Evidence 704(b) . Agent Cromer’s opinion did not detract from the jury’s
responsibility to determine Escalante’s state of mind.
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B. The Jury Instruction on Deliberate Ignorance Was Proper.
The district court did not plainly err when it instructed the jury that it could
establish the element of knowledge from a defendant’s deliberate ignorance of his
possession of a controlled substance. The evidence “support[ed] the inference that
[Escalante] was aware of a high probability of the existence of the [cocaine] 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. Rivera, 944 F.2d 1563,
1571 (11th Cir. 1991). Escalante’s evidence established that he traveled to Atlanta
with Garcia without knowing Garcia well and without knowing the reason for the
trips, Garcia paid for Escalante’s travel, and Escalante never asked where they
were going or what they were doing. The deliberate ignorance instruction was
erroneous as to Flores, who admitted knowledge in his statement to Officer
Thomas, but Flores cannot establish that this error affected his substantial rights.
As we discuss below, the evidence supported Flores’s conviction on a theory of
actual knowledge.
C. Flores’s Motion to Suppress His Confession Was Properly Denied.
The district court did not abuse its discretion when it denied Flores’s motion
to suppress statements made to Officer Thomas. Flores identifies nothing in the
record that compels us to reverse the factual findings of the district court that
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Flores’s Miranda waiver and confession were voluntary. Whether Officer
Thomas’s uncorroborated testimony about the confession was credible was a
proper question for the jury.
D. The Evidence Was Sufficient to Support Flores’s Convictions.
The district court did not err when it denied Flores’s motions for a judgment
of acquittal. Viewing the evidence in the light most favorable to the government,
we take Officer Thomas’s account of Flores’s confession as true. A reasonable
jury was entitled to conclude that the confession, Flores’s other statements, and the
circumstances of the offense established guilt beyond a reasonable doubt. The
confession and the discovery of the bags of cocaine in the previously empty trunk
of the SUV established knowing possession and distribution, 21 U.S.C.
§ 841(a)(1). Flores’s admission that he had spoken with Escalante and Garcia, the
evidence from the phones that corroborated his statement, the encounter on the on-
ramp, and the evidence of the completion of the transaction all established the
existence of an agreement to transport a controlled substance, id. § 846.
E. The Mandatory Minimum Sentence Based on Flores’s Prior Convictions
Was Proper.
Flores’s Sixth Amendment right to a jury trial was not violated when the
district court established the fact of Flores’s prior convictions by a preponderance
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of the evidence. See Almendarez-Torres v. United States, 523 U.S. 224, 243,
118 S. Ct. 1219, 1231 (1998); United States v. Orduno-Mireles, 405 F.3d 960,
962-63 (11th Cir. 2005).
F. The Mandatory Minimum Sentence for Cocaine Possession Was Proper.
The district court did not err when it imposed the mandatory minimum life
sentence based on Flores’s possession of five kilograms or more of cocaine. See
21 U.S.C. § 841(b)(1)(A)(ii). “[A] defendant need not be found to know the
particular drug involved in order to receive a mandatory sentence based on the
kind of drug under § 841(b)(1).” United States v. Gomez, 905 F.2d 1513, 1514
(11th Cir. 1990).
IV. CONCLUSION
Escalante’s convictions and Flores’s convictions and sentences are
AFFIRMED.
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