United States v. Ramon De La Fe

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 18, 2007
No. 05-13779 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20380-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON DE LA FE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 18, 2007)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Ramon De La Fe appeals his convictions and 235-month sentence for
conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846; attempt to possess with intent to distribute cocaine, in violation of 21 U.S.C.
§ 846; conspiracy to affect interstate commerce by means of robbery, in violation
of 18 U.S.C. § 1951(a); and conspiracy to use a firearm during and in relation to a
crime of violence and drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A), (n). At trial, the district court allowed the admission of evidence
that De La Fe was arrested, in Loxley, Alabama, on November 17, 2002, for
possession of a controlled substance, where over $30,000 of U.S. currency was
seized, and testimony by a Drug Enforcement Administration (“DEA”) Agent
regarding drug routes in the United States post-9/11.
On appeal, De La Fe argues that the district court abused its discretion by
admitting evidence of his 2002 arrest for possession of cocaine, in violation of
Fed.R.Evid. 403 and 404. He contends that: (1) the prosecution elicited the
evidence for the improper purpose of showing that he had a propensity to engage
in drug trafficking; (2) evidence of possession is not probative to prove intent to
distribute cocaine; (3) the fact that there was a two-year temporal gap between the
arrest and the offenses charged undercut the probative value of the evidence; and
(4) the evidence was overly prejudicial, as it had no other relevance than to show
that he had a propensity to deal drugs. Additionally, he argues that the prejudice
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was bolstered by the court allowing the introduction of testimony regarding
Houston/Miami drug routes, which suggested that the money was illegal proceeds.
He contends that the limiting instruction given by the judge was worthless because:
(1) the Rule 404(b) evidence was repeated; (2) the prejudice was enhanced by the
expert testimony regarding the drug routes; and (3) the evidence was used to
bolster the testimony of Diaz, his codefendant.
We review a district court’s ruling on the admission of evidence for an abuse
of discretion. United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000).
"[W]hen employing an abuse-of-discretion 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. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en
banc), cert. denied, 125 S. Ct. 2516 (2005).
Rule 404(b) provides in relevant part that:
[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
Fed.R.Evid. 404(b). We have held that the following three-step test must be
satisfied in order for evidence to be admitted under Rule 404(b): (1) the extrinsic
offense must be relevant to an issue other than the defendant's character; (2) there
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must be sufficient proof that the defendant committed the offense; and (3) the
evidence must possess probative value that is not substantially outweighed by its
undue prejudice and must meet the other requirements of Rule 403. United States
v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005),cert. denied, 127 S. Ct. 46
(2006).
On appeal, De La Fe only takes issue with the first and third prongs of the
test. As to the first prong, a "defendant who enters a not guilty plea makes intent a
material issue." United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995).
We have recognized that the government has a particularly strong need to prove
intent in conspiracy cases where the defendant denies any connection with the
transaction at issue, and there are no overwhelmingly credible witnesses to testify
as to the defendant’s intent to distribute a substance. United States v.
Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993). We have also held that
evidence of a three-year-old conviction for possession of cocaine for personal use
is relevant and admissible to demonstrate a defendant’s intent in a charged
conspiracy for possession with intent to distribute. United States v. Butler, 102
F.3d 1191, 1195-96 (11th Cir.1997). Further, we have noted that “circuit
precedent regards virtually any prior drug offense as probative of the intent to
engage in a drug conspiracy.” Matthews, 431 F.3d at 1311.
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Regarding the third prong of the Rule 404(b) test, we have found that it
should consider the differences between the charged and extrinsic conduct, the
temporal remoteness between the two events, and the government’s need for the
evidence to prove intent. Diaz-Lizaraza, 981 F.2d at 1225. We have stated that,
“‘[t]he greater the government's need for evidence of intent, the more likely that
the probative value will outweigh any possible prejudice.’” Delgado, 56 F.3d at
1366 (quoting United States v. Hicks, 798 F.2d 446, 451 (11th Cir. 1986)).
Further, “[a] similarity between the other act and a charged offense will make the
other offense highly probative with regard to a defendant's intent in the charged
offense.” United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2004).
Further, we have held that "extrinsic drug offenses do not tend to incite a jury to an
irrational decision," Delgado, 56 F.3d at 1366, and, the risk of undue prejudice can
always be reduced by a district court's limiting instruction, Ramirez, 426 F.3d at
1354.
The district court did not abuse its discretion by admitting evidence
regarding De La Fe’s 2002 arrest for cocaine possession because the evidence was
relevant to show his intent to commit the charged crimes and was not unduly
prejudicial.
Next, De Le Fe argues that the trial court erred by permitting the “expert”
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testimony of Agent Sciortino as to drug routes, where the prosecution failed to
disclose, prior to trial, that Agent Sciortino would be testifying as an expert, or
provide a written summary of his testimony. He argues that Agent Sciortino’s
testimony regarding drug routes was specialized, and therefore, constituted expert
testimony, because it was garnered from his experience as a DEA agent pre- and
post-9/11. He argues that the prosecution’s failure to comply with the federal rules
violated his Sixth Amendment right to have notice of his opponent so that he
properly could confront him in cross-examination. Additionally, he argues that the
testimony : (1) heightened the prejudicial impact of the Rule 404(b) Alabama arrest
evidence, as it impermissibly suggested that De La Fe had a propensity to transport
drugs; (2) constituted impermissible testimony as to De La Fe’s intent or mental
state, pursuant to Fed.R.Evid. 704(b), as the testimony implied that someone
traveling the Miami to Houston route, as De Le Fe was at the time of his Alabama
arrest, intended to smuggle or distribute drugs; and (3) was irrelevant, as there was
no evidence that De La Fe was a member of any drug organization that would be
transporting narcotics or monies from Houston to Miami.
Where, as here, a proper objection is made, we review the district court's
rulings on admission of evidence for an abuse of discretion. See Jiminez, 224 F.3d
at 1249. The government must disclose, upon the defendant’s request, a written
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summary of any expert testimony that the government intends to use during its
case-in-chief. Fed.R.Crim.P. 16(a)(1)(G). Violations of Rule 16, however, will
not result in the reversal of a conviction unless the violation prejudices a
defendant’s substantial rights. United States v. Chastain, 198 F.3d 1338, 1348
(11th Cir. 1999). In determining whether a defendant’s substantial rights have
been violated, the Court must consider “‘how the violation affected the defendant's
ability to present a defense.’” Id. (quoting United States v. Noe, 821 F.2d 604, 607
(11th Cir. 1987)).
Under Rule 701, a lay person may testify as to opinions or inferences that
are: “(a) rationally based on the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed.R.Evid. 701. We have held that, under the 2000 amended
version of Rule 701, witnesses can testify “based upon their particularized
knowledge garnered from years of experience within the field.” Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1223 (11th Cir.
2003). In making this holding, we indicated that we would uphold decisions in
United States v. Novaton, 271 F.3d 968, 1009 (11th Cir. 2001), and United States
v. Myers, 972 F.2d 1566, 1577 (11th Cir. 1992), in which the district court had
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permitted law enforcement officers to give opinion testimony of drug practices,
based on their perceptions and on their past experiences as officers, under the
amended version of Rule 701. Tampa Bay Shipbuilding & Repair Co., 320 F.3d at
1221, 1223 n.17; but see United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir.
2002) (leaving open the question of whether witness testimony based wholly on
past experience, and not both on past experience and personal observations about
the particular factual circumstances unique to the case would be admissible as lay
testimony under Rule 701).
To the extent that De La Fe argues that Agent Sciortino’s testimony was not
relevant, was unfairly prejudicial, and impermissibly addressed his state of mind or
intent, these arguments were not raised below. We review claims raised for the
first time on appeal only for plain error to avoid manifest injustice. United States
v. Harness, 180 F.3d 1232, 1234 (11th Cir. 1999). When analyzing a claim under
the plain error standard, we will look to see (1) whether the district court
committed error, (2) whether the error was plain, and (3) whether the error affected
substantial rights. Id. In order to be reversible, this error also must “seriously
affect the fairness, integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732, 113 S.Ct.1770, 1776, 123 L. Ed. 2d 508 (1993).
We have held that, when an error is not obvious under current law, it cannot be
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plain. Unites States v. Hernandez-Gonzalez, 318 F.3d 1299, 1302 (11th Cir.
2003).
Relevant evidence is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Fed.R.Evid. 401.
Rule 403 provides that “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. In
reviewing a Rule 403 issue, we view “the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its undue prejudicial
impact.” United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir. 2003)
(quotations omitted). Rule 704 provides that “[n]o expert witness testifying with
respect to the mental state or condition of a defendant in a criminal case may state
an opinion or inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged.” Fed.R.Evid.
704(b). We have held that the rule means that an expert cannot “expressly state a
conclusion” that a defendant did or did not have the intent necessary to be guilty of
the crime charged. United States v. Alvarez, 837 F.2d 1024, 1031 (11th Cir. 1988).
The evidence is not excludible, however, simply because an obvious inference from
the evidence is that the defendant had the requisite intent. Id.
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Because we allow police officers to give lay opinion testimony regarding
drug practices, the district court did not abuse its discretion by admitting Agent
Sciortino’s testimony regarding drug trafficking routes in the United States.
Nevertheless, even if the court erred in admitting the testimony, the admission
would not warrant reversal because De La Fe has not shown how the admission of
the testimony affected his mere presence defense at trial. Further, with respect to
his other arguments, the district court did not plainly err as the evidence was not
plainly in violation of Rules 401, 403, or 704(b).
Next, De La Fe argues that the district court misapplied the advisory
guidelines by failing to find that he was a minor or minimal participant, pursuant to
§ 3B1.2. He argues that the only objective evidence available to the court proved
that, at most, he was merely going to be a “look out” man during the intended
robbery, and his presence and actual participation were not planned by Diaz or the
other conspirators. Specifically, he argues that he was less culpable than Iglesias
and Diaz, who both instigated the plan to commit the robbery.
Section 3B1.2(b) provides for a two-level reduction in a defendant’s base
offense level if he was a minor participant in the offense. U.S.S.G. § 3B1.2(b). A
district court’s determination of a defendant’s role in an offense constitutes a factual
finding reviewed for clear error. United States v. Rodriguez De Varon, 175 F.3d
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930, 937 (11th Cir. 1999). The defendant bears the burden of proving by a
preponderance of the evidence that he is entitled to a minor-role reduction. Id., 175
F.3d at 939. A minor participant means any participant “who is less culpable than
most other participants, but whose role could not be described as minimal.”
U.S.S.G. § 3B1.2, comment. (n.5). To determine whether a minor-role reduction
applies, a district court should first measure the defendant’s role against the conduct
to which the defendant is being held accountable. De Varon, 175 F.3d at 940-41.
This requires the district court to assess all probative facts of the defendant’s role in
his relevant conduct. Id. at 943. Although in many cases, this first method of
analysis will be dispositive, the district court may also measure the defendant’s
culpability in comparison to that of other participants in the relevant conduct. Id. at
944. A defendant whose role in the relevant conduct was less than that of other
participants is not necessarily entitled to a minor-role reduction where no
participants are minor participants. Id.
Upon review of the transcripts and the presentence investigation report, and
upon consideration of the parties’ briefs, we find no reversible error with respect to
De La Fe’s convictions and sentence.
Because De La Fe’s actual conduct was identical to his relevant conduct, and
he failed to establish that he was less culpable than other participants in the offense,
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the court did not clearly err by denying him a role reduction. Accordingly, we
affirm.
AFFIRMED 1
1
De La Fe’s request for oral argument is denied.
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