United States v. Max Jeri

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11418
________________________
D.C. Docket No. 1:15-cr-20822-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAX JERI,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 5, 2017)
Before HULL, MARCUS, and CLEVENGER, * Circuit Judges.
*
Honorable Raymond C. Clevenger III, United States Circuit Judge for the Federal Circuit,
sitting by designation.
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MARCUS, Circuit Judge:
In October 2015, Max Jeri arrived at Miami International Airport on a flight
from Lima, Peru, carrying 7.95 kilograms of cocaine secreted in various items in his
luggage including jackets, notebooks, purses, and pillows. Jeri was charged, tried by
a jury, and convicted of importing a controlled substance and of possessing a
controlled substance with the intent to distribute. On the eve of trial, the
Government came into possession of a video filmed for a television show, “Drug
Wars,” that was filmed at the airport during the seizure of the drugs Jeri was
carrying. The film showed the cocaine that had been recovered from Jeri’s
luggage. Jeri was given a copy of the video on the morning of trial, but his motion
to continue the trial was denied and the case proceeded before he had a chance to
watch the video.
Jeri now appeals the denial of his motion for a new trial and challenges
several of the trial court’s rulings. He cites several errors, including that the trial
court’s denial of a continuance deprived him of his right to counsel; that the court
erred by excluding what he characterized as the exculpatory “Drug Wars” video
and several transcripts taken from controlled calls and text messages that Jeri
placed under the guidance of law enforcement after he was taken into custody; that
the trial court limited his ability to cross-examine two Government witnesses; that
the trial court improperly allowed a lay witness to testify as an expert, allowed that
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witness to testify regarding an ultimate issue of the case, and allowed an expert
witness to testify about drug-courier profiles; that the trial court erroneously
instructed the jury on deliberate ignorance; and, finally, that the cumulative effect
of these errors entitles him to a new trial.
After closely reviewing the entire record, we cannot say that the trial court
abused its discretion in denying Jeri’s motion for a new trial. Although we think it
would have been wiser to allow Jeri time to view the video before starting the trial,
the tape was not exculpatory and Jeri has not come close to establishing specific
and substantial prejudice from this omission. We can discern no other errors in this
record, and, therefore, affirm the judgment of the district court.
I.
On October 9, 2015, Max Jeri arrived at Miami International Airport aboard
American Airlines Flight #918 from Lima, Peru. Upon his arrival, he headed to
passport control. The attending Passport Control Officer, David Saavedra, asked
him several standard entry questions and ultimately referred him for secondary
screening because his answers appeared to be “very vague,” his responses were
“very long,” he would not make “eye contact,” and he was “looking around for
answers.” According to Saavedra, “it all appeared suspicious.” Jeri then entered
the country, collected his two checked bags, and proceeded for a customs
examination. CBP Officer Claudia Laucerica asked Jeri whether the two items of
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checked luggage, the carry-on bag, and the duty-free bag he was carrying were his;
whether everything belonged to him; whether he had packed everything by
himself; and, finally, whether he was transporting anything for anyone else. Jeri
answered the first three questions affirmatively and, as for the fourth, explained
that he was transporting some souvenirs from his sister and some candies for his
children.
Laucerica and CBP Officer Carlos Iguina opened the bags. Immediately,
they saw some adult-sized winter jackets and smelled “some odor of perfume.” A
bottle of perfume was found in his luggage, but the perfume had a different smell
than the odor emanating from the jackets. The officers asked Jeri about the
perfume and why it smelled so strongly; he “said they probably put perfume on it.”
The officers also asked Jeri about the jackets, and, notably, he explained that they
were for his children in New York. Laucerica ran the jackets through an x-ray
machine and saw irregularities that appeared to show small packages concealed
inside the jackets. Around the same time, Iguina noticed that Jeri’s luggage also
contained purses and pillows that felt abnormally thick. The officers cut these
items open and found still more small packages inside.
The substances contained within these packages were field tested and
indicated a positive result for cocaine. In all, the officers found ten purses, four
adult jackets, three children’s jackets, several notebooks, three pillows, and two
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bottles. All of the purses, jackets, notebooks, and pillows were filled with packages
containing powdered cocaine; the bottles contained liquid cocaine. In all, the
officers recovered some 7.95 kilograms of cocaine hydrochloride from Jeri’s three
bags. No property receipts or reports indicated which items containing narcotics
were taken from which pieces of luggage, but, the officers explained, all of Jeri’s
bags contained some amount of cocaine. Laucerica testified that three of the purses
containing cocaine were taken from Jeri’s carry-on bag.
Jeri was read his Miranda rights in Spanish (he did not speak English); he
waived them and agreed to speak to law enforcement. He told the officers that in
his wallet they would find a business card with the name of the person for whom
he was transporting the bags. The business card contained the name Fancy Lopez,
one of Jeri’s coworkers at a nursing home in New York. Jeri explained that in
September 2015, he approached Lopez, who he knew owned a travel agency, to
ask if she had any cheap tickets to Peru. A few days later, Lopez told him that she
would give him a free ticket if he would transport two bags from New York to
Peru and then return with two bags from Peru. After he agreed, Lopez purchased
his ticket and gave him the bags to take from New York to Peru; they contained
electronic items, toys, and shoes. When Jeri got to Peru, he met Lopez’s sister and
gave her the suitcases. Before he left Peru, he met Lopez’s sister again, at the
airport; she accompanied him to an American Airlines ticket counter, where she
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opened the bags and showed him what was inside. Jeri then checked the bags and
boarded the flight to Miami.
Jeri further explained that he had met Lopez some ten years earlier and that
he had previously transported bags for Lopez. In 2014, Lopez gave him a ticket
from New York to Peru in exchange for transporting bags to Peru, but Jeri refused
to bring bags back to New York. He said that he had seen drug seizures on the
news and on the Discovery Channel and did not feel comfortable transporting bags
from Peru to the United States.
The officers asked Jeri why he had lied to them about the jackets, initially
asserting that they were for his children. He claimed he “didn’t see anything
wrong with it, and he was also trying to move along with the process.” According
to Homeland Security Investigation (HSI) Officer Eduardo Escobar, Jeri then
“stood there for a while almost trying . . . to think of what to say,” before
remarking, “I can’t believe she did that to me, we have known each other for 10
years.”
Hours after the seizure, Jeri volunteered to make several controlled phone
calls to Lopez. The law-enforcement officers coached Jeri on what to say; the goal
was to elicit inculpatory comments from Lopez about the contents of the luggage.
Jeri told Lopez he was concerned the bags contained drugs, but she repeatedly said
the bags were clean and asked him to continue his trip to New York. The officers
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also arranged a controlled delivery of the bags, but the individuals who came to
pick them up refused to take possession and left empty-handed. No arrests were
made.
Jeri was then indicted by a federal grand jury in Miami for one count of
importing a controlled substance in violation of 21 U.S.C. § 952(a) and one count
of possession with intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1). In various pretrial motions, Jeri objected to the Government’s
request to exclude transcripts of the controlled calls and text messages and also
objected to one of the Government’s experts. These motions were denied. Jeri
also moved for a continuance twice, seeking additional time to review evidence
and investigate potential witnesses. Both motions were denied.
On the eve of trial, the prosecution learned for the first time that a film crew
from the television show “Drug Wars” was at Miami International Airport at the
time of Jeri’s seizure. The prosecutor informed defense counsel of a video that had
been made and said every effort would be made to obtain a copy of the footage.
The prosecution received a copy from the show’s production company on the
evening before trial (December 13); they informed defense counsel at 8:52 p.m.
that they had obtained a copy of the video and would make it available. The video
was produced to defense counsel at 8:30 a.m. on the morning of the first day of trial
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(December 14), but the trial court denied Jeri’s request for a continuance or a recess
to allow him an opportunity to view the video before the trial started.
The trial began on December 14, 2015, and lasted only a day and a half.
And the only question at issue was whether Jeri knew there was cocaine in the
luggage he had transported. The Government called six witnesses: CBP Officers
Saavedra, Laucerica, and Iguina; HSI Officer Escobar; and two expert witness,
Special Agent Marco Suarez and Doraida Diaz (a forensic chemist with the Drug
Enforcement Administration). At the end of the first day, the defendant moved for
a mistrial because the court had denied his motion for a continuance and because it
had admitted expert testimony from Escobar. The next day -- after the defense had
an opportunity to view the “Drug Wars” video -- Jeri’s counsel offered the video as
evidence. The district court denied that application as well as a renewed motion
for a mistrial.
Jeri did not call any witnesses or testify on his own behalf. After the
Government rested, the defense renewed its previous motions for a mistrial, again
without success. The jury received the trial court’s instructions -- including an
instruction on deliberate ignorance, as requested by the Government -- and left to
deliberate at 10:30 a.m. on December 15. The jury finished deliberating at 11:50
a.m. and returned a guilty verdict on both counts.
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Jeri was sentenced two and a half months later. The Presentence
Investigation Report recommended an offense level of 30 and a criminal-history
category of I, yielding a guidelines range of 97 to 121 months. Jeri was sentenced
to 120 months on both counts, to be served concurrently, followed by four years of
supervised release. The defendant unsuccessfully moved for a new trial, and he
timely appealed his convictions to this Court.
II.
Jeri first claims that the district court’s denial of his motions to continue
violated his right to counsel by impairing his ability to present a defense. “We
review a district court’s denial of a motion for continuance only for an abuse of
discretion.” United States v. Valladares, 544 F.3d 1257, 1261 (11th Cir. 2008).
“To prevail on such a claim, a defendant must show that the denial of the motion
for continuance was an abuse of discretion which resulted in specific substantial
prejudice.” United States v. Verderame, 51 F.3d 249, 251 (11th Cir. 1995). As we
see it, while the district court would have been wiser to allow a continuance, we
are hard-pressed to say, on this record, that the error was fatal. Jeri has not come
close to showing specific and substantial prejudice because the video revealed the
contents of the luggage only after they had been removed from the various bags,
and none of the film exculpated Jeri.
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“The Sixth and Fourteenth Amendments to the U.S. Constitution guarantee
that any person brought to trial in any state or federal court must be afforded the
right to assistance of counsel before he or she can be validly convicted and
punished by imprisonment.” Id. And “[i]mplicit in th[e] right to counsel is the
notion of adequate time for counsel to prepare the defense.” Id. at 252. Thus,
under some circumstances, the “denial of a motion for continuance of trial may
vitiate the effect of this fundamental right” by “render[ing] the right to defend with
counsel an empty formality,” id. at 251 (quotations omitted), and depriving the
defendant of an opportunity to adequately prepare his defense.
“There are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process.” Ungar v. Sarafite, 376 U.S. 575, 589
(1964). Rather, “[t]he answer must be found in the circumstances present in every
case, particularly in the reasons presented to the trial judge at the time the request
is denied.” Id. We have explained that the “[d]enial of a continuance, requested
by a defendant in order to permit additional preparation for trial, must be upheld
unless the defendant can show an abuse of discretion and specific, substantial
prejudice.” United States v. Saget, 991 F.2d 702, 708 (11th Cir. 1993). “To make
such a showing, [the defendant] must identify relevant, non-cumulative evidence
that would have been presented if his request for a continuance had been granted.”
Id. We have also considered the “time available for preparation, the likelihood of
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prejudice from denial, the accused’s role in shortening the effective preparation
time, the degree of complexity of the case, and the availability of discovery from
the prosecution.” United States v. Uptain, 531 F.2d 1281, 1286 (5th Cir. 1976)1
(footnotes omitted).
The facts of this case suggest to us that the trial court would have been wiser
to grant a continuance or at least a short recess. After all, the video was not made
available to Jeri until the morning of trial and he did not get to watch the video
until after the first day of the day-and-a-half-long trial, by which time five
Government witnesses had already testified.
However, we cannot say that this error was fatal because Jeri has not shown
(as he must) specific or substantial prejudice caused by the denial of a continuance.
The essential point is that the video showed the luggage only after the contents had
been unloaded and after the contraband had been removed. The video did not
depict the contraband as it was unloaded from Jeri’s bags, and it did not show the
initial search of the bags that revealed the contraband. The clips that Jeri sought to
introduce showed items inside open suitcases, items being removed from Jeri’s
personal suitcase, and items being returned to that suitcase. The defense says these
clips prove that Jeri was not carrying cocaine in his personal carry-on bag and
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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impeach the government witnesses who said otherwise. However, these clips also
showed the items that contained cocaine -- the notebooks, purses, jackets, and
pillows -- already laid out on a table, indicating that they had been removed before
anything was filmed. Indeed, we have no way of telling from the video which
purses, pillows, and jackets came from which suitcase.
In these circumstances, we are hard-pressed to see how a video showing
contraband already spread out on tables would have exculpated Jeri. In the
absence of any footage of cocaine actually being removed from the suitcases, a
video filmed after the cocaine had been removed does not add much, if anything at
all, to an evaluation of whether Jeri knew the suitcases contained cocaine or
whether his carry-on bag also contained cocaine. The officers depicted on the
video repeatedly mentioned that cocaine was found in all three bags. Finally, it’s
worth noting that the defense spent much of its cross-examination of Officer
Laucerica highlighting the missteps in her examination, including her failure to
create itemized property receipts delineating which items containing cocaine were
pulled from which suitcase. Thus, even if it was a mistake to deny the motion to
continue, Jeri has not shown specific, substantial prejudice stemming from the
delay.
Jeri’s earlier motions to continue fare no better. Those applications sought
additional time to investigate and interview potential witnesses, namely,
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individuals who appeared on the transcripts of the controlled calls. However, to
succeed on these claims, Jeri must show that “due diligence has been exercised to
obtain the attendance of the witness, that substantial favorable testimony would be
tendered by the witness, that the witness is available and willing to testify, and that
the denial of a continuance would materially prejudice the defendant.” Id. at 1287.
Jeri’s motions do not satisfy this score and merely claim, only at the highest order
of abstraction, that he “needs more time to investigate the information.” This bare
assertion, without more, is not enough.
Despite this obvious conclusion, it is worth reiterating “that a scheduled trial
date should never become such an overarching end that it results in the erosion of
the defendant’s right to a fair trial.” Id. at 1291. The costs attendant to a
continuance were low, but the potential risk to the defendant was real. While we
are acutely aware of the district courts’ heavy caseloads and fully appreciate the
important public interest in their expeditious resolution, it is often wise to counsel
patience in finding the “delicate balance between the defendant’s right to adequate
representation by counsel of his choice and the general interest in the prompt and
efficient administration of justice.” United States v. Baker, 432 F.3d 1189, 1248
(11th Cir. 2005), abrogated in part on other grounds by Davis v. Washington, 547
U.S. 813 (2006).
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III.
Jeri raises several other trial-related issues that he says warrant a new trial.
First, he claims that he was prejudiced by the delayed disclosure of the “Drug
Wars” video and that the trial court abused its discretion by excluding the video
and the transcripts of the controlled calls and text messages. Jeri also offers that
the trial court improperly limited his ability to cross-examine two witnesses and
allowed two Government witnesses to improperly opine. Finally, he challenges the
jury instructions because they included a deliberate ignorance instruction. We are
persuaded by none.
“A timely motion for new trial is addressed to the sound judicial discretion
of the trial court”; therefore, “[a] decision denying a new trial motion is reviewable
only for an abuse of that discretion.” Hercaire Int’l, Inc. v. Argentina, 821 F.2d
559, 562 (11th Cir. 1987). In evaluating whether specific trial errors warrant a new
trial, we apply the harmless-error standard found in Fed. R. Civ. P. 61. Rule 61
says that “a new trial is warranted only where the error has caused substantial
prejudice to the affected party (or, stated somewhat differently, affected the party’s
substantial rights or resulted in substantial injustice).” Peat, Inc. v. Vanguard
Research, Inc., 378 F.3d 1154, 1162 (11th Cir. 2004) (quotations omitted). With
this deferential standard in mind, the challenged trial rulings are taken in turn.
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A.
Jeri first challenges the delayed disclosure of the “Drug Wars” video, as well
as the trial court’s exclusion of the video and transcripts of the controlled calls and
text messages. We have already addressed the delay and the attendant motions for
a continuance. As for the district court’s evidentiary rulings, we review only for an
abuse of discretion. United States v. Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009).
“An abuse of discretion occurs if the district court applies an incorrect legal
standard or makes findings of fact that are clearly erroneous.” Id. “Erroneous
evidentiary rulings will not result in reversal if they are ‘harmless,’ meaning that
the party asserting error has not shown prejudice to a substantial right.” United
States v. Burston, 159 F.3d 1328, 1336 (11th Cir. 1998). “[E]rrors that do not
‘affect substantial rights must be disregarded.’” United States v. Frazier, 387 F.3d
1244, 1266 n.20 (11th Cir. 2004) (en banc) (quoting Fed. R. Crim. P. 52(a)).
1.
The trial court excluded the video, saying that it was “unhelpful, cumulative,
irrelevant, and potentially misleading.” Jeri makes two arguments regarding the
“Drug Wars” video. First, he says that the delayed disclosure of the evidence
amounted to a violation of Brady v. Maryland, 373 U.S. 83 (1963). He also claims
that the exclusion of the video violated the Due Process Clause because he was
prevented from presenting relevant evidence. Neither claim is persuasive.
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The Supreme Court has long held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Id. at 87. Evidence that would impeach
government witnesses also falls into this category. See United States v. Bagley,
473 U.S. 667, 676 (1985). “A Brady violation can also occur if the prosecution
delays in transmitting evidence during a trial, but only if the defendant can show
prejudice, e.g., the material came so late that it could not be effectively used.”
United States v. Beale, 921 F.2d 1412, 1426 (11th Cir. 1991). To establish a
violation of Brady, then, “a defendant must show that: (1) the prosecution
suppressed evidence; (2) the evidence was favorable to him; and (3) the evidence
was material to the establishment of his guilt or innocence.” Id. Evidence is
material “only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
Bagley, 473 U.S. at 682. To succeed, therefore, the defendant must show that “the
favorable evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514
U.S. 419, 435 (1995).
Jeri does not claim that the Government purposefully suppressed the video;
rather, he says that the video was disclosed too late to be of any use in his efforts to
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impeach the Government’s witnesses. But after viewing the video, we conclude
that it was not material to Jeri’s defense and that, had it been admitted, it would not
have changed the result. Again, the video was not exculpatory because it showed
that the seized cocaine had already been laid out on a table; it did not show the
cocaine as it was being pulled from any of the bags. The video clips had precious
little bearing on whether Jeri knew he was transporting cocaine (the ultimate issue
in the case) or on which bags contained cocaine when Jeri entered the country. In
short, the video clips did not make the knowledge element any more or less certain
and their exclusion did not preclude Jeri from presenting his defense. In fact, he
repeatedly argued that his personal carry-on bag did not contain cocaine. On this
record, there was no Brady violation.
Jeri’s second claim grounded in due process substantially overlaps with his
Brady argument. It is no more convincing than the first one. The exclusion of four
types of evidence may, in some circumstances, violate the Compulsory Process and
Due Process Clauses: (1) evidence “directly pertaining to any of the actual
elements of the charged offense or an affirmative defense”; (2) evidence
“pertaining to collateral matters that, through a reasonable chain of inferences,
could make the existence of one or more of the elements of the charged offense or
an affirmative defense more or less certain”; (3) evidence that “is not itself tied to
any of the elements of a crime or affirmative defense, but that could have a
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substantial impact on the credibility of an important government witness”; and
(4) evidence that, “while not directly or indirectly relevant to any of the elements
of the charged events, nevertheless tends to place the story presented by the
prosecution in a significantly different light, such that a reasonable jury might
receive it differently.” United States v. Hurn, 368 F.3d 1359, 1363 (11th Cir.
2004). However, even a constitutional error of this nature is subject to harmless-
error review: “[A] conviction tainted by constitutional error must be set aside
unless the error complained of was harmless beyond a reasonable doubt.” Kyles,
514 U.S. at 436 (quotations omitted).
The video does not fit into any of the Hurn categories. It does not directly
pertain to the actual element of the charged offense that was at issue at trial (Jeri’s
knowledge); it does not make that element any more or less certain; it does not
pertain to collateral matters that could make the existence of that element more or
less certain; and, finally, it does not place the prosecution’s story in a significantly
different light. The video also does not substantially affect the credibility of
Government witnesses, again, because it only showed the cocaine after removal
from Jeri’s luggage. Most significantly, it does not refute any testimony that
cocaine was found in several vessels secreted in Jeri’s carry-on bag. The district
court did not violate the Due Process Clause in excluding the video.
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2.
Jeri also challenges the exclusion of several transcripts made of the
controlled calls Jeri had placed to Lopez. As instructed by law-enforcement
officers, Jeri told Lopez that a white powder was leaking out of one bag, that he
smelled a strange odor, and that he was not comfortable traveling further. Lopez
explained that the powder was “vitamins,” that the smell was “oregano,” and that
he should continue on his travels. Lopez then called Jeri back with another woman
on the line who assured him that the bags were checked in Peru and did not contain
drugs. The officers also sent text messages to Lopez, her associates, and her
cousin in an unsuccessful attempt to arrange for a transfer of the bags. The trial
court excluded these transcripts, too, as being inadmissible hearsay and otherwise
irrelevant. We can discern no abuse of discretion in these evidentiary calls.
Hearsay is defined as an out-of-court statement that is offered as evidence
“to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c).
Hearsay evidence is generally inadmissible unless it falls under one of the stated
exceptions to the hearsay rule. See Fed. R. Evid. 803–04; Baker, 432 F.3d at 1203.
As relevant to this case, the state-of-mind exception says that statements “of the
declarant’s then-existing state of mind (such as motive, intent, or plan)” are
admissible. Fed. R. Evid. 803(3); accord United States v. Rivera, 780 F.3d 1084,
1092 (11th Cir. 2015) (“Generally, an out-of-court statement admitted to show its
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effect on the hearer is not hearsay.”). However, before a statement that would
otherwise be inadmissible hearsay “can be admitted under 803(3) to show the
declarant’s then existing state of mind, the declarant’s state of mind must be a
relevant issue in the case.” United States v. Scrima, 819 F.2d 996, 1000 (11th Cir.
1987).
To the extent Jeri offered the transcripts in order to prove the truth of his or
Lopez’s statements, the transcripts were properly excluded as hearsay. And to the
extent they were offered to illuminate the state of mind either of the defendant or
of Lopez, they were properly excluded. For starters, Jeri was coached by law
enforcement on what to say, so his statements can hardly be said to reflect his true
state of mind. Jeri also claims, however, that the transcripts reveal Lopez’s state of
mind -- but Lopez’s state of mind is wholly irrelevant. Lopez was not on trial, and
indeed, introducing the transcripts might have confused the jury on this score. Nor
did anything Lopez said illuminate the defendant’s state of mind. Finally, Jeri
claims that the transcripts should have been admitted under the rule of
completeness, found in Fed. R. Civ. P. 106. Rule 106 says that “[i]f a party
introduces all or part of a writing or recorded statement, an adverse party may
require the introduction, at that time, of any other part -- or any other writing or
recorded statement -- that in fairness ought to be considered at the same time.”
Fed. R. Evid. 106. However, the Government did not introduce any part of a
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written or recorded statement. Rather, various witnesses testified from their
personal experiences regarding what Jeri told them during in-person interviews.
Plainly, the transcripts were not required to qualify, explain, or contextualize Jeri’s
in-person statements, and there was no abuse of discretion in excluding them.
But even if we were to assume that the transcripts were relevant and
admissible, their exclusion was harmless. See United States v. Hands, 184 F.3d
1322, 1329 (11th Cir. 1999) (“An erroneous evidentiary ruling will result in
reversal only if the resulting error was not harmless.”). For one thing, there was a
strong evidential, if circumstantial, foundation that Jeri knew he was transporting
cocaine. Jeri had previously refused to transport Lopez’s bags back from Peru,
supposedly because “he had watched the news and had seen drug seizures on the
news . . . and he didn’t feel comfortable” with transporting bags from Peru to New
York. Nevertheless, this time he agreed to transport bags both to and from Peru,
despite his earlier concerns about drug seizures. He also lied to the agents by
saying, among other things, that he was carrying jackets for his children.
Moreover, every bag that he carried and every bag that he checked contained
cocaine concealed in notebooks, jackets, purses, or bottles. Even if the transcripts
of the calls and the text messages had been presented, there is no reasonable
likelihood that the outcome would have been different.
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B.
Jeri next claims that the trial court abused its discretion by limiting his cross-
and recross-examination of two Government witnesses: Officer Laucerica and Agent
Escobar. “The trial court has broad discretion under [Federal Rule of Evidence]
611(b) to determine the permissible scope of cross-examination and will not be
reversed except for clear abuse of that discretion.” United States v. Jones, 913
F.2d 1552, 1564 (11th Cir. 1990); see also Fed. R. Evid. 611(b) (“Cross-
examination should not go beyond the subject matter of the direct examination and
matters affecting the witness’s credibility. The court may allow inquiry into
additional matters as if on direct examination.”). “The denial of a defendant’s
Confrontation Clause right to cross-examination is examined for harmless error.”
United States v. Ndiaye, 434 F.3d 1270, 1286 (11th Cir. 2006). “The correct
inquiry is whether, assuming that the damaging potential of the cross-examination
were fully realized, a reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt.” Id. (quoting Olden v. Kentucky, 488 U.S.
227, 232 (1988).
It is well established that “[t]he right of confrontation guaranteed by the Sixth
Amendment includes the right of cross-examination.” United States v. Lankford,
955 F.2d 1545, 1548 (11th Cir. 1992). However, “[t]he defendant’s right to cross-
examine witnesses is not without limitation. He is entitled only to an opportunity for
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effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” United States v. Baptista-
Rodriguez, 17 F.3d 1354, 1366 (11th Cir. 1994) (quotations omitted). The district
court retains “wide latitude” to “impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice, confusion of
the issues, the witness’[s] safety, or interrogation that is repetitive or only marginally
relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
The availability of recross-examination likewise falls within the trial court’s
broad discretion, but “[a]s opposed to cross-examination, a defendant has no
constitutional right to recross-examination.” United States v. Ross, 33 F.3d 1507,
1517–18 (11th Cir. 1994). Rather, he has only a “limited right to recross-
examination where a new matter is brought out on redirect examination.” Id. To
allow redirect examination on new material but to deny recross-examination on the
same material may violate the Confrontation Clause. Id. at 1518. However,
“[r]eversal is not required if, assuming the damaging potential of recross-
examination was fully realized, the error was harmless beyond a reasonable
doubt.” Id. In this analysis, we consider “the importance of the witness’[s]
testimony in the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise permitted,
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and . . . the overall strength of the prosecution’s case.” Id. (quoting Van Arsdall,
475 U.S. at 684).
As for Laucerica, Jeri claims that cross-examination was improperly limited
in the following exchange:
Q. He told you a little bit more information about Fancy [Lopez], didn’t he?
A. He was mentioning about that that’s his friend for they work together,
but --
[Government]: Objection, Your Honor; this is hearsay.
THE COURT: Sustained.
While this question alone may not have elicited a hearsay response, any further
questions about what Jeri told Laucerica would likely have elicited hearsay. But
even if this evidential ruling was error -- and we don’t think that it was -- it would
not only have been harmless but harmless beyond a reasonable doubt. What Jeri
told Laucerica about Lopez had already come into evidence and was repeated later
in the trial. Earlier during cross-examination, Laucerica testified that Jeri said
Lopez was his friend, that he had gotten his ticket from her, and that they work
together. Later, Agent Escobar testified that Jeri said he had known Lopez for ten
years, that they worked together, and that he “c[ould]n’t believe she did that to
[him].” These statements were repeated throughout the testimony of Laucerica and
Escobar.
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Moreover, Jeri’s additional claim that Laucerica’s statements should have
been admitted under the rule of completeness likewise falls short because the
Government never attempted to introduce any written or recorded evidence of the
calls. There was no statement for Laucerica to complete.
As for Escobar, Jeri raises two issues. First, the defendant says the trial
court improperly sustained two objections during his cross-examination in the
following exchanges:
Q. Now, he tells CBP that he is carrying souvenirs for his sister, correct?
A. I believe so.
[Government]: Objection; hearsay.
THE COURT: Sustained.
...
Q. So he continued to insist that this woman was his friend for 10 years,
they were close, and he thought she would never do something like this to
him, correct?
[Government]: Objection; calls for speculation.
THE COURT: Sustained.
To the extent the first statement, regarding the souvenirs, was offered to prove
whether Jeri was carrying souvenirs, it was properly excluded as hearsay. As for
the second statement, Escobar would not have needed to speculate in order to tell
the jury whether Jeri said he was close to Lopez. But even if the trial court had
erroneously ruled, again, any error would be harmless. Testimony on these points
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had already been elicited at length and was amplified later in the trial. Thus,
Officer Laucerica testified, on both direct and cross-examination, that Jeri said he
was carrying souvenirs for his sister, so that fact had already been presented to the
jury by the time Escobar testified. And during cross-examination, Escobar
repeatedly mentioned -- without objection -- Jeri’s statement that he had known
Lopez for ten years and that he thought she “would never do something like this to
him.” Only later, when defense counsel asked Escobar whether Jeri had
“continued to insist” that he and Lopez were close and that she would never do
something like this to him, was an objection based on speculation sustained.
Indeed, even after the objection, defense counsel continued to refer to that
statement and the trial court eventually allowed that statement in for its effect on
the listener. The repeated mention of these facts strongly suggests that these
rulings -- even if erroneous -- were harmless.
Jeri offers a second line of attack. He claims that the Government’s new line
of questioning of Escobar -- “Have you ever interviewed a drug courier who came
equipped with a back story?” and “So in the context of drug couriers, what’s a
back story?” -- during redirect examination should have been excluded. The
defense counsel’s objections were overruled. The trial court also barred any
recross-examination. Jeri says these limitations, too, deprived him of his right to
confront his accusers.
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On redirect examination Escobar was asked, for the first time, if he had
“ever interviewed a drug courier who came equipped with a back story,” what a
back story is, and whether drug couriers are ever given anything to corroborate
their back stories. As we see it, these questions were not beyond the scope of the
cross-examination -- rather, they went directly to the credibility of Jeri’s defense
that he was “duped” by Lopez. During cross-examination, defense counsel
repeatedly mentioned Jeri’s statement that “he thought she would never do
something like this to him” in an attempt to bolster the claim that Jeri did not know
he was carrying narcotics and had been set up; as Jeri said, this was his “entire
defense.” The prosecution was entitled to challenge all of this by probing the
witness on redirect about whether the statements were part of a back story given to
Jeri by Lopez, or, put differently, whether Jeri had been coached on his answers.
There was no abuse of discretion in denying Jeri the opportunity to recross the
witness.
But even if Jeri had not opened the door to this line of questioning with his
cross-examination, the denial of recross was harmless. The import of the new
information was minimal, especially in light of later testimony brought out by the
defense from Agent Suarez. Jeri himself asked the Government’s drug-courier
expert, Suarez, questions about drug-trafficking organizations and the information
that couriers are provided and could have probed Suarez further on that point. Nor
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has Jeri explained what recross-examination may have established, or, indeed,
what specific questions he was precluded from asking. Moreover, the trial court
did not prevent Jeri from calling Escobar as his own witness, a factor that also
supports a finding of harmlessness. See Ross, 33 F.3d at 1518 (“[A]lthough the
court denied Appellant the opportunity to recross-examine Herrera, the court in no
way prevented Appellant from calling Herrera as his own witness and questioning
him directly about his observations.”). Finally, the Government’s case against Jeri
was strong. In short, he has not come close to establishing how the opportunity for
recross-examination would have affected the outcome of the case.
C.
Jeri also challenges the testimony of two Government witnesses, lay witness
Escobar and expert witness Suarez. “We review the district court’s ruling
regarding the admissibility of the agent’s lay testimony under Rule 701 for a clear
abuse of discretion.” United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir.
2011). “We review for abuse of discretion the district court’s decisions regarding
the admissibility of expert testimony and the reliability of an expert opinion.”
Frazier, 387 F.3d at 1258.
1.
Jeri claims that the district court improperly permitted Escobar, a lay
witness, to testify as an expert and allowed Escobar to opine about the ultimate
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issue in the case. Opinion testimony by lay witnesses is governed by Federal Rule
of Evidence 701, which limits the testimony to opinions that are “rationally based
on the witness’s perception”; “helpful to clearly understanding the witness’s
testimony or to determining a fact in issue”; and “not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701.
Notably, “Rule 701 does not prohibit lay witnesses from testifying based on
particularized knowledge gained from their own personal experiences.” United
States v. Hill, 643 F.3d 807, 841 (11th Cir. 2011).
In this case, Escobar was slated to testify as a lay witness and was not
noticed as an expert. Jeri claims, however, that Escobar’s lay testimony
impermissibly crossed over the line into expert testimony. But “[j]ust because [a
lay witness’s] position and experience could have qualified him for expert witness
status does not mean that any testimony he gives at trial is considered ‘expert
testimony.’” United States v. LeCroy, 441 F.3d 914, 927 (11th Cir. 2006). Lay
witnesses may draw on their professional experiences to guide their opinions
without necessarily being treated as expert witnesses. See id. Indeed, law-
enforcement officers can testify as lay witnesses even though their expertise often
makes them more efficient or productive at their jobs. See Jayyousi, 657 F.3d at
1103–04.
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The claimed error began when, on redirect, the prosecutor asked Escobar
about his experience interviewing drug couriers and about the relative size of this
seizure. Escobar said that he had done “over 50, maybe a hundred, over a hundred
interviews of investigations that are related to narcotics.” He had been both the
primary case agent and a co-case agent in “countless narcotics investigations
stemming from marine narcotics trafficking through couriers through passengers’
narcotics investigations, conspiracy.” He also testified that he had interviewed
drug couriers who came with a prepared back story. Finally, Escobar said that,
based on his experience investigating drug couriers, this was a “very meticulous
and a very -- a thought-of plan,” and that seizures of this size attract media
attention. His testimony was not improper expert testimony; it merely showed
Escobar’s familiarity with narcotics investigations and his experience interviewing
drug couriers, which had been developed during his tenure as a law-enforcement
officer.
But even if Escobar actually offered an expert opinion, any claimed error
would be harmless. For starters, Escobar could have been qualified as an expert.
Escobar had eight years of experience conducting narcotics investigations and had
participated in as many as one hundred investigations. Moreover, the fact that the
Government failed to notice Escobar as an expert would not, standing alone,
warrant reversal. Even if we agreed that Escobar should have been classified and
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disclosed as an expert witness, that deficiency “will result in a reversal of
conviction only if such a violation prejudice[d] [the defendant’s] substantial
rights.” United States v. Hamaker, 455 F.3d 1316, 1332 (11th Cir. 2006)
(quotations and alteration omitted). Jeri has not made that showing. The defense
knew before trial that Escobar would testify and that he had played a substantial
role in the investigation. The defense also knew that testimony about drug couriers
would be elicited from one of the Government’s expert witnesses and had ample
opportunity to prepare for and cross-examine that witness. Nor was Jeri precluded
from calling either Escobar or Suarez as his own witness. Again, Jeri has not
shown how the Government’s failure to identify Escobar as an expert prejudiced
his substantial rights.
Jeri also claims, however, that Escobar improperly opined on an ultimate
issue -- Jeri’s knowledge. It is well recognized that “[a]n opinion is not
objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704(a).
However, “[i]n a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense. Those matters are for
the trier of fact alone.” Fed. R. Evid. 704(b). “An expert testifies ‘with respect to’
the mental state or condition of a defendant when an inference of the facts testified
to is that the defendant had the mental state or condition constituting an element of
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the crime.” United States v. Alvarez, 837 F.2d 1024, 1031 (11th Cir. 1988). Thus,
an expert “cannot expressly state a conclusion that the defendant did or did not
have the requisite intent”; nor can the expert “stat[e] an opinion as to the
defendant’s state of mind at the time of the offense.” Id.
Jeri claims that Escobar testified as to the ultimate issue in the case -- Jeri’s
state of mind when he brought his luggage (and the cocaine) into the United States
-- during the following exchange between the prosecution and Escobar:
Q. In this case, based on your training and experience, was the defendant
truthful in his interview with you?
[Defense Counsel]: Objection; ultimate issue.
THE COURT: Overruled.
By [Prosecution]:
Q. You can answer the question, Special Agent.
A. He was not truthful.
Q. Why do you say that?
A. Throughout the interview it was obvious that he had long pauses, some
of the answers he was evasive. I have been around long enough and done
plenty of interviews to be familiar with those types of behaviors.
Jeri claims that because Escobar was testifying as an expert, this testimony violated
Rule 704(b). But as we have said, Escobar was not testifying as an expert. And
whether Escobar was testifying as a lay witness or as an expert, he did not
improperly give his opinion about whether Jeri knew he was carrying cocaine in
his suitcases. Rather, Escobar drew on his experience as a law-enforcement officer
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to answer whether he thought Jeri was telling the truth during his interview, which
included many questions about how and where Jeri picked up the suitcases, what
he did with the suitcases, how he knew Lopez, what happened on his previous trip
for Lopez, and for whom he was carrying the bags. While these questions bear on
whether Jeri knew he was transporting cocaine, they are wholly subsidiary building
blocks of fact that do not squarely and directly answer the ultimate question. This
witness was not asked whether Jeri knew he was transporting cocaine, nor did he
answer any such question.
2.
As for Suarez, Jeri claims that the district court improperly allowed him to
testify regarding drug-courier profiles. We have previously noted the inherently
prejudicial nature of a drug-courier profile:
Drug courier profiles are inherently prejudicial. . . . Generally, the admission
of this evidence is nothing more than the introduction of the investigative
techniques of law enforcement officers. Every defendant has a right to be
tried based on the evidence against him or her, not on the techniques utilized
by law enforcement officers in investigating criminal activity. Drug courier
profile evidence is nothing more than the opinion of those officers
conducting an investigation. Although this information is valuable in
helping drug agents to identify potential drug couriers, we denounce the use
of this type of evidence as substantive evidence of a defendant’s innocence
or guilt.
United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir. 1983). Thus, we
have said that “the use of drug courier profiles to establish reasonable suspicion
should be viewed critically.” Id. However, if drug-courier profiles are used
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“purely for background material,” then “both the prejudicial effect and the
probative value of this evidence is highly questionable.” Id.
In this case, however, Suarez did not testify about drug-courier profiles or
about how law-enforcement officers identify potential drug couriers. Rather,
Suarez’s testimony focused on the street value of the cocaine found, the methods
that couriers use to conceal cocaine, the qualities of liquid cocaine, the amount of
information couriers are typically given about the scope of the enterprise, how (and
how much) couriers are paid, and how “blind mules” operate. All of this was
permissible and is testimony that is commonly offered in narcotics cases. See
United States v. Garcia, 447 F.3d 1327, 1335 (11th Cir. 2006) (acknowledging 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”) (quotations omitted); United
States v. Chastain, 198 F.3d 1338, 1349 (11th Cir. 1999) (allowing expert
testimony about “general techniques of drug smugglers” and modifications to an
airplane that made it more suitable for drug smuggling); United States v. Costa,
691 F.2d 1358, 1361–62 (11th Cir. 1982) (allowing expert testimony “regarding
the street value and purity of the cocaine” at issue). See also United States v.
Long, 328 F.3d 655, 666 (D.C. Cir. 2003) (allowing expert testimony about the
“modus operandi of persons involved in illegal drug trafficking”); United States v.
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McDonald, 933 F.2d 1519, 1522 (10th Cir. 1991) (allowing expert testimony
regarding the qualities of rock cocaine).
Suarez never offered an opinion about whether Jeri knew he was
transporting cocaine. Indeed, Suarez clarified for the jury that he was not involved
in Jeri’s investigation at all and that he was there to testify solely regarding the
value of the cocaine and the methods that drug organizations use to smuggle drugs.
In fact, his testimony even supported the conclusion that Jeri was not a drug
courier. While he noted that drug couriers “come from all walks of life” and are
frequently U.S. citizens, he also said that it would be uncommon for a courier to
know personal details about the recipient like her address, phone number, and
workplace, as Jeri did. Quite simply, it was not an abuse of discretion for the trial
court to allow Suarez’s testimony.
D.
Jeri next argues that the district court abused its discretion by instructing the
jury on deliberate ignorance. He claims that this instruction was improper because
it was unsupported by any evidence and because the Government could argue
either actual knowledge or deliberate ignorance, but not both. We remain
unpersuaded.
A district court’s decision on whether to give a jury instruction is reviewed
for abuse of discretion. Ndiaye, 434 F.3d at 1280. “So long as the instructions
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accurately reflect the law, the trial judge is given wide discretion as to the style and
wording employed in the instructions.” United States v. Starke, 62 F.3d 1374,
1380 (11th Cir. 1995). Accordingly, “[a] conviction will not be reversed on the
basis of an improper jury charge unless the issues of law were presented
inaccurately, the charge included crimes not in the indictment, or the charge
improperly guided the jury in such a substantial way as to violate due process.”
United States v. Felts, 579 F.3d 1341, 1344 n.1 (11th Cir. 2009) (quotations
omitted); see also United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013)
(“We will not reverse a defendant’s conviction based on a challenge to the jury
charge unless we are left with a substantial and ineradicable doubt as to whether
the jury was properly guided in its deliberations.”) (quotations omitted).
“The deliberate ignorance instruction is based on the alternative to the actual
knowledge requirement at common law that if a party has his suspicion aroused but
then deliberately omits to make further enquiries, because he wishes to remain in
ignorance, he is deemed to have knowledge.” United States v. Rivera, 944 F.2d
1563, 1570 (11th Cir. 1991) (quotations omitted). Instructing the jury on this
theory of knowledge is proper “only 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.” Id. at 1571 (quotations and alteration
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omitted). That is, “a district court should not instruct the jury on ‘deliberate
ignorance’ when the relevant evidence points only to actual knowledge, rather than
deliberate avoidance.” Id. (emphasis omitted). The instruction should be given
“only in those comparatively rare cases where there are facts that point in the
direction of deliberate ignorance.” Id. at 1570 (quotations and alteration omitted).
However, if there is evidence in the record to support both actual knowledge and
deliberate ignorance, then both instructions may be given. See United States v.
Arias, 984 F.2d 1139, 1143 (11th Cir. 1993).
Jeri does not argue that the deliberate-ignorance instruction was inaccurate
or that it instructed on crimes that were not listed in the indictment. Rather, he
claims that the instruction “deprived him of his right to a fair trial” because it was
unsupported by the evidence. But there was ample evidence introduced at trial to
support the instruction. Jeri admitted that he had previously refused to transport
Lopez’s bags from Peru to New York because of his concerns about drug seizures
at airports. According to Escobar, Jeri said “that he had watched the news and had
seen drug seizures on the news and had also seen -- particularly he mentioned The
Discovery Channel, and he didn’t feel comfortable with it,” and that “he had seen
what had happened” when drugs were seized. Moreover, the cocaine was secreted
in ten purses, seven jackets, several notebooks, three pillows, and two bottles
distributed across all three of his bags. There was substantial evidence of deliberate
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ignorance on Jeri’s part, and it was within the trial court’s discretion to instruct the
jury accordingly. Moreover, there was ample evidence of actual knowledge as
well. The trial court did not abuse its discretion by giving both instructions.
E.
Finally, Jeri contends that the cumulative prejudicial effect of the trial errors
requires a new trial. The doctrine of cumulative error “provides that an
aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal
and harmless errors) can yield a denial of the constitutional right to a fair trial,
which calls for reversal.” Baker, 432 F.3d at 1223 (quotations omitted). “When
we address a claim of cumulative error, we consider all errors preserved for appeal
and all plain errors in the context of the trial as a whole to determine whether the
appellant was afforded a fundamentally fair trial.” United States v. House, 684
F.3d 1173, 1197 (11th Cir. 2012) (quotations omitted). The total weight of the
error depends on many factors including, inter alia, “the nature and number of the
errors committed; their interrelationship, if any, and combined effect; how the
district court dealt with the errors as they arose (including the efficacy -- or lack of
efficacy -- of any remedial efforts); the strength of the government’s case[;] and
the length of trial.” Baker, 432 F.3d at 1223 (quotations and alteration omitted).
Here, we have concluded that the trial court’s denial of a continuance was
harmless error. We also determined that while some of the trial court’s rulings
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during the testimony of Laucerica and Escobar may have been erroneous, when
examined in the context of the entire trial, none deprived Jeri of his right to a fair
trial. The claimed errors were not of great weight: the evidence that was excluded
was not probative of the ultimate issue at trial, and the limitations on cross-
examination excluded testimony that had already been introduced repeatedly by
other witnesses or by that very witness earlier in his or her testimony. And while
Jeri also complained of error in expert witness testimony and the jury instructions,
we conclude that neither of these rulings was erroneous. The error that gives us
the greatest pause is the denial of Jeri’s request for a continuance after learning of
the “Drug Wars” video, but given the contents of the video clips, the defendant has
not come close to establishing specific, substantial prejudice. Thus, we can say
with confidence, “after pondering all that happened,” that “the judgment was not
substantially swayed by the error.” Id. at 1225 (quoting Kotteakos v. United
States, 328 U.S. 750, 765 (1946)). Accordingly, we AFFIRM.
AFFIRMED.
39