United States v. Oscar Perez-Lopez

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 23, 2008
THOMAS K. KAHN
No. 07-12764
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 04-00229-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR PEREZ-LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 23, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Oscar Perez-Lopez appeals his convictions for conspiracy to possess cocaine
with intent to distribute, in violation of 21 U.S.C. § 846, and possession of cocaine
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).
I.
On October 30, 2004, Baldwin County Sheriff’s Deputy Randy Younce
made a traffic stop of a tractor trailer driven by Rudolfo Tobias. Tobias consented
to a search of the tractor trailer. Younce initially observed what he believed to be
drug paraphernalia and later discovered a hidden compartment under the sleeper
cab that contained $456,000 in cash and 439 grams of cocaine.
Tobias first lied about the money and drugs, but eventually cooperated with
the police and told them that Perez-Lopez organized the trip and made all of the
arrangements. On November 17, 2004, a federal grand jury indicted Tobias and
Perez-Lopez for conspiracy to possess with intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and
possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. Tobias agreed to plead guilty to the conspiracy count, and in
exchange for his testimony against Perez-Lopez, the government agreed to drop the
remaining count and move for a reduced sentence.
At Perez-Lopez’s trial, Tobias testified about the terms of his plea
agreement. Regarding the drug operation, Tobias testified that he met Perez-Lopez
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through his cousin, Isador Reyes, about a week before his arrest. Initially he had
told the police that he had been introduced by a person named Eddie, but he later
admitted that it was actually his cousin, Reyes. During a meeting outside Perez-
Lopez’s ranch in Texas, Reyes and Perez-Lopez offered Tobias a job driving a
tractor trailer from Texas to Florida. Perez-Lopez explained that Tobias would
drive a tractor trailer containing drugs and a legitimate load of limes to Florida—
the drugs would be stored in a hidden compartment. When Tobias arrived in
Florida, he would contact a person named Burro, at a number provided by Perez-
Lopez, to arrange final delivery of the drugs, and once Burro removed the drugs,
Tobias would deliver the legitimate load. Perez-Lopez was supposed to pay
Tobias for ths trip, but no details about payment were given at that meeting.
Tobias then testified about the details of his trip from Texas to Florida, his
meeting with Burro, who arranged for the removal of the drugs, and his delivery of
the load of limes. After all this had occurred, Tobias then waited in Florida for
Burro to contact him again, and Burro arranged to have the money obtained by the
sale of the drugs loaded into the truck’s hidden compartment. Once the money was
loaded, Tobias drove the tractor trailer toward Mississippi, where he was going to
pick up a load of chickens. He was stopped by Deputy Younce while he was
traveling through Baldwin County, Alabama.
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Once he decided to cooperate with police, Tobias: (1) told them where he
had picked up the money and that he was headed to Perez-Lopez’s ranch in Texas;
(2) described the ranch; (3) identified Perez-Lopez in a photo line-up; and (4)
provided Perez-Lopez’s contact information. Tobias also agreed to place
monitored calls to Perez-Lopez so he could make an excuse for the delay (which
was actually caused by his arrest) and the agents could hear that Perez-Lopez knew
about the money. In one of the calls, Perez-Lopez told Tobias he could take some
of the money in the hidden compartment to pay for repairs on the truck.
Before cross-examination, in a conference outside the presence of the jury,
counsel for Perez-Lopez told the district court that Tobias had identified “Eddie” as
Reyes for the first time at trial and this information had not been provided in
discovery. Counsel had a copy of Tobias’ plea agreement, and its factual recital
named Eddie, not Reyes. He requested access to Tobias’ presentence investigation
report to determine if, at that point, Tobias had admitted that it was Reyes, not a
fictional Eddie, who introduced him to Perez-Lopez, and, if not, to use the PSR for
impeachment purposes. The government stated that it could not say with certainty
when Tobias admitted the falsehood because the original case agent no longer
worked with the sheriff’s office, had not documented all the interviews, and the
only written report about the interviews was turned over to the defense. The
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government believed that it had discovered this information before Tobias’
sentence hearing, but it had no documentation to show that. The district court
ruled that Perez-Lopez could use the factual recital from Tobias’ plea agreement to
impeach him, but he could not use the PSR because it was sealed and Tobias did
not sign anything agreeing to its accuracy.
On cross-examination, Tobias admitted, among other things, that he
originally lied to the agents about the existence of Eddie, but he thought that he
had told them the truth about Eddie on the night of his arrest. After further
questioning, he stated that he was not sure about the date, but he knew he had told
the truth at some point.
The government also presented the testimony of a number of other
witnesses, including Drug Enforcement Administration agent Michael Lumpkin,
who worked in the agency’s Texas office and had been given the information
Tobias provided about Perez-Lopez’s ranch. On October 31, 2004, Lumpkin took
pictures of a ranch just east of Edinburg, Texas, which agents confirmed was
owned by Perez-Lopez and his wife, Lorena Perez. While monitoring the ranch,
Lumpkin followed an Expedition, which was registered to Perez-Lopez and his
wife, as it left the ranch, was driven through several cities, and then was driven
back to the ranch. Lumpkin described the vehicle’s course of action as “heat runs
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or checking to see if it was being followed by law enforcement.”
Perez-Lopez objected to Lumpkin’s testimony about “heat runs” because
Lumpkin had not been qualified as an expert witness, and the government had
failed to provide notice that he was going to testify about surveillance techniques
as an expert witness. The government explained that it was only asking Agent
Lumpkin to describe his observations, and the district court overruled Perez
Lopez’s objection. Lumpkin then testified that the vehicle pulled into cul-de-sacs
and drove around the city without stopping at any particular location before
returning to the ranch. On November 12, 2004, the agents executed a search
warrant at the ranch, in which they recovered a T-mobile bill for the telephone
used by Tobias, Tobias’ marriage license, and Perez-Lopez’s financial records.
The search did not yield any drugs or money.
The government also called Sharon Murphy, an agent with Immigration and
Customs Enforcement, who testified about her involvement in the investigation.
She told about the phone records of Tobias and Perez-Lopez. Tobias had a number
labeled as “Burro” in his phone, which was called many times between October 25
and October 28, 2004. When the government asked Murphy if she was aware that
an investigation had been initiated with regards to Burro, Perez-Lopez objected to
the testimony as irrelevant because it concerned an independent investigation of
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someone other than Perez-Lopez. He also objected that the question called for
inadmissible hearsay in the form of statements by other DEA agents telling
Murphy that they were investigating Burro. The district court ruled that the
testimony was relevant because Burro was alleged to be a conspirator in the case,
and that it was not hearsay as long as Murphy refrained from stating what other
agents had told her. Murphy testified that: (1) the agents in Texas, Alabama, and
Florida were conducting a coordinated investigation into the drug conspiracy; (2)
the agencies initiated an investigation aimed at identifying Burro and others
connected to Tobias; and (3) the individual associated with the Burro phone
number had been identified, but the investigation was still ongoing. Murphy also
testified that at some point in the investigation, Tobias had implicated Reyes as the
person who introduced him to Perez-Lopez.
At the close of the government’s case, the district court denied Perez-
Lopez’s motion for judgment of acquittal. Perez-Lopez recalled Tobias, and then
testified on his own behalf. After both sides rested, the court submitted the case to
the jury. The jury convicted Perez-Lopez on all counts, and the district court
sentenced him to 300 months imprisonment on the conspiracy count and 240
months imprisonment on the possession with intent to distribute count, to be served
concurrently.
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Perez-Lopez timely appealed, and he contends that the district court erred
by: (1) allowing Agent Lumpkin to testify about “heat runs” without qualifying
the agent as an expert on counter-surveillance and even though the government had
failed to provide Perez-Lopez with notice of the expert testimony; (2) admitting
testimony about the investigation of Burro because it was irrelevant, inadmissible
hearsay, its admission violated his Sixth Amendment Confrontation Clause rights,
and it was “amorphous bad character evidence;” and (3) declining to order the
government to turn over any information concerning when Tobias informed the
agents that the individual who introduced him to Perez-Lopez was his cousin,
Reyes. Perez-Lopez also contends that, when coupled together, the cumulative
effect of the individual errors deprived him of a fair trial.
II.
Perez-Lopez first contends that the district court abused its discretion by
admitting Agent Lumpkin’s testimony about “heat runs” because he had not been
qualified as an expert in surveillance, and Perez-Lopez had not received advance
notice of the expert testimony as required by Federal Rule of Criminal Procedure
16. We review rulings made under Rule 701 of the Federal Rules of Evidence only
for an abuse of discretion. United States v. Myers, 972 F.2d 1566, 1576–77 (11th
Cir. 1992).
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Rule 701 governs the testimony of “lay” witnesses. It provides that the
testimony of a witness who is not testifying as an expert, “is limited to those
opinions or inferences which 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 explained that in order to be rationally based on the perception of
the witness, the testimony must be “based on first-hand knowledge or
observation.” United States v. Marshall, 173 F.3d 1312, 1315 (11th Cir. 1999).
The witness’s perception, however, may be interpreted in light of his experience.
See Myers, 972 F.2d at 1577 (stating that a police officer could testify that burn
marks on the skin were caused by a stun gun where the opinion was based on the
officer’s personal perceptions of the marks and his experience on the police force).
We have rejected the argument that simply because a police officer testifies to an
opinion based in part on his past experiences, his testimony should not be admitted
under Rule 701. United States v. Novaton, 271 F.3d 968, 1008 (11th Cir. 2001).
Rule 702 governs the testimony of expert witnesses. See Fed. R. Evid. 702.
When the district court admits a witness’s testimony under Rule 702 rather than as
a lay opinion under Rule 701, the provisions of Federal Rule of Criminal
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Procedure 16 apply. According to Rule 16, at the defendant’s request, the
government must provide before trial a written summary of expert witness
testimony, including “the witness’s opinions, the bases and reasons for those
opinions, and the witness’s qualifications.” Fed. R. Crim. P. 16(a)(1)(G).
The district court did not abuse its discretion in admitting Agent Lumpkin’s
testimony under Federal Rule of Evidence 701 because his opinion that the vehicle
he observed was conducting a “heat run,” or “checking to see if it was being
followed,” was based on his personal observations of the vehicle and his past
experience as a DEA agent. Just as the district court in Myers did not abuse its
discretion by admitting under Rule 701 an officer’s testimony that the burn marks
on a person’s skin were the result of a stun gun based on the officer’s personal
observations of the marks and his past experience as a police officer, see Myers,
972 F.2d at 1577, the district court here did not abuse its discretion by admitting
under Rule 701 Lumpkin’s testimony about “heat runs” based on his personal
observations of the Expedition and his past experience as a DEA agent. Because
Lumpkin provided a lay opinion, Perez-Lopez’s discovery argument under Federal
Rule of Criminal Procedure 16, which only applies to expert testimony, lacks
merit.
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III.
Perez-Lopez next contends that the district court abused its discretion by
allowing Agent Murphy to testify about the investigation of Burro in Florida
because, as he argued before the district court, it was irrelevant, inadmissible
hearsay. Perez-Lopez also argues for the first time on appeal that the evidence was
inadmissible as “amorphous bad character evidence” under Federal Rule of
Evidence 404(b), and that the admission of this testimony violated his rights under
the Sixth Amendment Confrontation Clause.
A.
We review evidentiary rulings only for an abuse of discretion. United States
v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). The district court abuses its
discretion when its “decision rests upon a clearly erroneous finding of fact, an
errant conclusion of law, or an improper application of law to fact.” Id. “Even if
an abuse of discretion is shown, nonconstitutional evidentiary errors are not
grounds for reversal absent a reasonable likelihood that the defendant’s substantial
rights were affected.” United States v. Malol, 476 F.3d 1283, 1291 (11th Cir.
2007) (quotations omitted). Reversal is not warranted “where an error had no
substantial influence on the outcome, and sufficient evidence uninfected by error
supports the verdict.” United States v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir.
11
2006).
The Federal Rules of Evidence provide that only relevant evidence is
admissible. Fed. R. Evid. 402. “Relevant evidence” is “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.
The district court did not abuse its discretion by concluding that Agent
Murphy’s testimony about the investigation of Burro was relevant. The
government had already provided evidence that Tobias had delivered drugs to a
man named Burro in Florida, that Perez-Lopez had given him a phone number for
Burro, and that Tobias had contacted Burro at that number several times between
October 25 and October 28, 2004. The fact that the DEA was conducting an
ongoing investigation of Burro in Florida was relevant to the scope and existence
of the overall conspiracy and corroborated the other evidence presented by the
government.
The district court also did not abuse its discretion by concluding that Agent
Murphy’s testimony was not hearsay. Under Federal Rule of Evidence 801,
hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
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asserted.” Fed. R. Evid. 801(c). Subject to certain exceptions, hearsay is not
admissible at trial. See Fed. R. Evid. 802.
Agent Murphy testified that there was a coordinated investigation occurring
in Texas, Alabama, and Florida, and that she was aware that Burro had been
identified as part of the ongoing investigation into the charged conspiracy. Her
testimony did not include any statements from other agents, and it appears to have
been based on her personal participation in the coordinated investigation of the
conspiracy. A witness’s testimony at trial based on her personal observations,
which does not include out-of-court statements, is not hearsay. See Fed. R. Evid.
801(c).
B.
Perez-Lopez argues for the first time on appeal that admission of the
evidence about the investigation of Burro violated his Sixth Amendment
Confrontation Clause rights. We review a claim of error raised for the first time on
appeal only for plain error. Baker, 432 F.3d at 1202–03, 1206. Plain error exists
where (1) there is an error; (2) the error is plain or obvious; and (3) the error affects
the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732–34,
113 S. Ct. 1770, 1776–78 (1993). When these three factors are met, we may then
exercise our discretion and correct the error only if it seriously affects the fairness,
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integrity, or public reputation of judicial proceedings. Id. at 732, 113 S. Ct. at
1776. Whether the error affected a defendants’s substantial rights hinges on
whether the error affected the outcome of the proceeding. Arbolaez, 450 F.3d at
1291.
“The Confrontation Clause of the Sixth Amendment guarantees criminal
defendants an opportunity to impeach through cross-examination the testimony of
adverse witnesses.” United States v. Ariaz-Izquierdo, 449 F.3d 1168, 1178 (11th
Cir. 2006), cert. denied, 127 S. Ct. 1041 (2007). The Confrontation Clause forbids
the introduction of testimonial hearsay evidence at trial, unless: (1) the declarant is
unavailable; and (2) the defendant had a prior opportunity to cross-examine the
declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374
(2004).
There was no error, much less plain error. The district court did not violate
Perez-Lopez’s Confrontation Clause rights by admitting Agent Murphy’s
testimony that Burro, an unindicted co-conspirator, was under investigation
because the testimony was based on her personal knowledge and was not hearsay.
Moreover, Perez-Lopez was given an opportunity to fully cross-examine Murphy
about the investigation during the trial, and therefore his Confrontation Clause
rights were not violated.
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C.
Perez-Lopez also argues for the first time on appeal that the evidence about
the investigation of Burro constituted improper character evidence, in violation of
Federal Rule of Evidence 404(b). As with Perez-Lopez’s Confrontation Clause
argument, we also review this argument only for plain error. Baker, 432 F.3d at1202–03, 1206.
Rule 404(b) forbids the admission of any evidence of “other crimes, wrongs,
or acts . . . to prove the character of a person in order to show action in conformity
therewith.” Fed. R. Evid. 404(b). However, such evidence “may . . . be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id.Perez-Lopez’s argument that the testimony was inadmissible character
evidence is meritless. As mentioned above, Agent Murphy’s testimony related to
an investigation of Burro regarding the underlying crime at issue under the charged
conspiracy. There was no reference to any “other crimes, wrongs, or acts”
committed by Perez-Lopez, or to his character. See Fed. R. Evid. 404(b). Rule
404(b) does not apply.
IV.
Perez-Lopez next contends that the district court erred in declining to order
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the government to turn over information about when Tobias informed the agents
that the individual who introduced him to Perez-Lopez was his cousin, Reyes.
Perez-Lopez argues that the information, including Tobias’ presentence
investigation report, was necessary for his attack on Tobias’ credibility, which he
argues was the central issue of the case.
We review de novo whether a violation of Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963), occurred below. United States v. Schlei, 122 F.3d 944, 989
(11th Cir. 1997). Upon request, the government has a duty to reveal any “evidence
[that] is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1196–97. This
duty covers “[i]mpeachment evidence . . . as well as exculpatory evidence.”
United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380 (1985). The
government violates a defendant’s constitutional right to due process when it
suppresses requested evidence that is favorable to the accused and the suppressed
evidence is material. United States v. Perez, 473 F.3d 1147, 1150 (11th Cir. 2006),
cert. denied, 127 S. Ct. 2147 (2007).
In order to establish constitutional error under Brady, a defendant must show
“(1) that the Government possessed evidence favorable to the defendant (including
impeachment evidence); (2) that the defendant did not possess the evidence nor
16
could he have obtained it himself with any reasonable diligence; (3) that the
prosecution suppressed the favorable evidence; and (4) that had the evidence been
revealed to the defense, there is a reasonable probability that the outcome of the
proceedings would have been different.” Id. “Within the possession, custody, or
control of the government does not include possession of a federal court or
probation officer.” United States v. Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997)
(citation omitted); see also United States v. Trevino, 556 F.2d 1265, 1270–71 (5th
Cir. 1977) (holding that a PSR generally is not considered to be in the
government’s possession for purposes of Brady material).1
Perez-Lopez’s argument is without merit because the record shows that
documents containing the information he sought either did not exist because of the
poor recordkeeping by the original case officer, or, in the case of Tobias’ PSR, the
document was not in the possession of the government for the purposes of Brady.
Moreover, Perez-Lopez cannot show that there is a reasonable probability that, had
the evidence been disclosed, the outcome of the trial would have been different.
He presented much the same information through other evidence, including
Tobias’ and Agent Murphy’s testimony, and he effectively impeached Tobias
1
In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
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using other evidence, such as the factual recitation in his plea agreement.
Accordingly, there was no Brady violation here.
V.
Perez-Lopez finally contends that when coupled together, the cumulative
effect of the individual errors deprived him of a fair trial. We address a claim of
cumulative error by first considering the validity of each claim individually.
United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997). We then
examine the evidentiary errors in the aggregate and the trial “as a whole to
determine whether the appellant was afforded a fundamentally fair trial.” Id. We
will reverse if the cumulative effect is prejudicial, even if each individual error was
harmless. Baker, 432 F.3d at 1203. However, where there is no error or only a
single error, there can be no cumulative error. United States v. Waldon, 363 F.3d
1103, 1110 (11th Cir. 2004).
Because the district court did not commit any individual errors, there cannot
be any cumulative prejudicial error.
AFFIRMED.
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