United States v. Jose Pedron

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 30, 2008
No. 07-11269 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20457-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE PEDRON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 30, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Jose Pedron appeals from his convictions and 175-month sentence for
possession with intent to distribute cocaine on July 14, 2006, in violation of 21
U.S.C. § 841(a)(1) (“Count 2”); possession with intent to distribute amphetamines
on July 14, 2006, in violation of 21 U.S.C. § 841(a)(1) (“Count 3”); possession
with intent to distribute amphetamines on July 17, 2006, in violation of 21 U.S.C. §
841(a)(1) (“Count 4”); and possession of cocaine on July 17, 2006, in violation of
21 U.S.C. § 844(a) (“Count 5”). Pedron raises four challenges to his convictions:
(1) the government committed prosecutorial misconduct in its closing argument;
(2) the district court abused its discretion in allowing a prior conviction to be used
to impeach Pedron’s testimony; (3) the district court abused its discretion in
allowing law enforcement officers to testify as lay witnesses; and (4) the evidence
was insufficient to sustain his convictions. As to his sentence, Pedron argues that:
(1) the district court improperly applied the obstruction-of-justice enhancement;
and (2) his ultimate sentence was unreasonable. After thorough review, we affirm.
We review a preserved claim of prosecutorial misconduct de novo. United
States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006), cert. denied, 127 S. Ct.
1305 (2007). We review preserved evidentiary rulings for abuse of discretion.
United States v. Masferrer, 514 F.3d 1158, 1162 (11th Cir. 2008). When a district
court’s evidentiary ruling is erroneous, we will not reverse if the error was
harmless. United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007). “An
error is harmless unless there is a reasonable likelihood that [it] affected the
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defendant’s substantial rights.” Id. (internal quotation omitted). We review the
sufficiency of the evidence supporting a criminal conviction de novo, examining
the evidence in a light most favorable to the government and making all credibility
choices in the government’s favor. United States v. Garcia-James, 484 F.3d 1311,
1319 (11th Cir. 2007), petition for cert. filed (June 11, 2007) (No. 06-11863).
When a sentencing enhancement for obstruction of justice is imposed, we review
the district court’s factual findings for clear error and its application of the
Sentencing Guidelines to those facts de novo. United States v. Massey, 443 F.3d
814, 818 (11th Cir. 2006). Finally, we review the ultimate sentenced imposed by a
district court for “reasonableness,” which “merely asks whether the trial court
abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008) (quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).1
First, we find no merit to Pedron’s contention that the government engaged
in misconduct during its closing argument by making three “misstatements”: (1)
vouching for its position by stating “[o]f course [Pedron] knowingly possessed
those pills”; (2) “belittl[ing]” defense counsel and strategy by comparing a portion
1
As discussed below, however, several of Pedron’s claims relating to prosecutorial
misconduct, evidentiary rulings, and his sentence were not raised at trial. In these circumstances,
we review the challenges for plain error, and will only reverse if there is (1) error that is (2) plain,
(3) affects substantial rights, and (4) seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Martinez, 407 F.3d 1170, 1173 (11th Cir. 2005).
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of counsel’s defense to a “grade school playground tactic”; and (3) shifting the
burden of proof by telling the jury that it had to weigh the defense’s case in making
its decision. Notably, Pedron did not object to the first two of these comments at
trial. “To establish prosecutorial misconduct, the remarks must be improper, and
the remarks must prejudicially affect the substantial rights of the defendant.”
Eckhardt, 466 F.3d at 947 (internal quotation and punctuation omitted). Here,
none of the comments were improper -- the vouching comment was simply an
argument based on the evidentiary circumstances, the alleged personal attack
comment was a valid remark on the defense strategy, and the burden-shifting
comment properly addressed the defense’s subpoena power. Moreover, even if
there was error concerning this last comment, any possible prejudice was obviated
since the prosecutor himself made clear that the burden was entirely on the
government, noting that only the government had an obligation to call any
witnesses. Accordingly, we find no error -- let alone plain error -- in Pedron’s
claims of prosecutorial misconduct.
Nor did the district court abuse its discretion by allowing the government to
impeach Pedron with a prior conviction for conspiracy to distribute controlled
substances. If a criminal defendant chooses to testify, his credibility is placed in
issue, and can be impeached with evidence of prior convictions. United States v.
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Vigliatura, 878 F.2d 1346, 1350-51 (11th Cir. 1989). Federal Rule of Evidence
609 says that for purposes of attacking a testifying defendant’s character for
truthfulness, a prior conviction “shall be admitted if the court determines that the
probative value . . . outweighs its prejudicial effect to the accused. . . .” Fed. R.
Evid. 609(a)(1). At trial, Pedron put his credibility at issue by testifying, and the
district court limited the government to one question about the conviction and later
admonished the jury that a prior conviction could not be considered in determining
Pedron’s guilt in this case. In so doing, the district court did not abuse its
discretion in admitting Pedron’s prior conviction.
We also reject Pedron’s argument that the district court abused its discretion
by allowing two lay witnesses to testify as expert witnesses without being qualified
as experts. Specifically, Pedron challenges: (1) Drug Enforcement Agency
(“DEA”) Special Agent Chad Hughes’s testimony, without the establishment of
background support, that “handwriting” was a code word for the quality of a
controlled substance; and (2) DEA Special Agent Michael Gannon’s testimony
about the inability to obtain fingerprints from plastic bags, even though he was not
a fingerprint expert. Federal Rule of Evidence 701 limits a witness’ testimony, if
not testifying as an expert, to opinions or inferences “which are (a) rationally based
on the perception of the witness, (b) helpful to a clear understanding of the
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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 employees and officers may testify as lay
witnesses “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). We can find no error, plain
or otherwise, in admitting Hughes’s lay testimony -- to which Pedron did not
object at trial -- as it was based on Hughes’s experience as a law enforcement
officer. While Gannon’s testimony may be the kind that should have been offered
by a fingerprint expert, we need not reach this issue because the error, if any, was
harmless -- that is, the evidence unaffected by this error supported Pedron’s
convictions.
Indeed, contrary to Pedron’s arguments, the evidence was sufficient to
convict him of each count. A conviction under 21 U.S.C. § 841(a)(1) requires the
government to establish that the defendant “(1) knowingly (2) possessed [a
controlled substance] (3) with intent to distribute it.” United States v. Faust, 456
F.3d 1342, 1345 (11th Cir. 2006) (internal quotation omitted), cert. denied, 127 S.
Ct. 615 (2006). “The government may prove constructive possession if it shows a
defendant maintained dominion or control over the drugs or over the premises
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where the drugs are located.” Id. (internal quotation omitted). To do so, the
government may rely on direct or circumstantial evidence and inferences drawn
from the circumstances. Id. at 1345-46. The evidence need not exclude “every
reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except guilt.” Id. at 1345 (internal quotation omitted).
As for Counts 2 and 3, Special Agent Gannon testified that the government’s
source, Eli Slieman, provided drugs to the DEA on July 14, 2006. Transcripts of
subsequent phone calls between Slieman and Pedron indicated that: (1) Slieman
called Pedron to tell him that “it” would be “check[ed] out and then they’ll let me
know,” and Pedron responded that it was “A-1”; (2) Slieman asked how many pills
there were, and Pedron replied that there were two; and (3) Pedron said that it had
been four days and he needed the money, noting the perfect “handwriting,” which
Special Agent Hughes testified meant drug purity. In response, Pedron testified
that “A-1” referred to his roofing business, that the “pills” referred to prescription
medicine that he had previously found in Slieman’s car, and that the “money” was
in connection with his roofing business and house payments. The jury plainly
disbelieved Pedron’s explanations, as evidenced by its verdict, and his statements
explaining away his suspicious behavior can be considered substantive evidence of
his guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (“[A]
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statement by a defendant, if disbelieved by the jury, may be considered as
substantive evidence of the defendant’s guilt.”) (emphasis omitted). In addition,
the testifying forensic chemist noted that the drugs recovered on July 14, 2006 and
July 17, 2006 shared appearance and purity level. Faust, 456 F.3d at 1345-46(possession can be proved with circumstantial evidence).
As for Count 4, Special Agent Gannon testified that the DEA searched
Pedron’s car and discovered 4,000 tablets of amphetamines in a briefcase in the
rear of the truck’s cabin. Moreover, Special Agent Hughes testified that he
discovered Pedron’s drivers license and Social Security card in the briefcase, near
the drugs. At a minimum, the government established constructive possession in
as much as Pedron had control over the vehicle where the drugs were discovered.
Id. at 1345. In short, based upon the monitored phone transcripts, the Special
Agents’ testimony interpreting the phone calls, Pedron’s testimony, and the drugs
recovered from Pedron’s vehicle, there was abundant evidence from which a jury
could find Pedron guilty beyond a reasonable doubt of all counts.
Finally, Pedron’s challenges to his sentence -- both of which we review for
plain error -- are also unsuccessful. Section 3C1.1 of the guidelines provides for a
two-level enhancement if:
(A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
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investigation, prosecution, or sentencing of the instant offence of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense.
U.S.S.G. § 3C1.1. A § 3C1.1 enhancement is appropriate if the defendant has
committed perjury. Id. cmt. n.4(b). In defining perjury for purposes of § 3C1.1,
the Supreme Court has relied on the federal criminal perjury statute and described
perjury as “[a] witness testifying under oath . . . [who] gives false testimony
concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993). Four elements are required for a court to find
perjury under § 3C1.1: (1) the testimony must be under oath; (2) the testimony
must be false; (3) the testimony must be material; (4) the testimony must be given
with willful intent to provide false testimony and not as a result of mistake,
confusion, or faulty memory. United States v. Singh, 291 F.3d 756, 763 n.4 (11th
Cir. 2002). While “it is preferable for a district court to address each element of
the alleged perjury in a separate and clear finding,” Dunnigan, 507 U.S. at 95, a
district court’s decision to enhance is sufficient if the “court makes a finding of an
obstruction of, or impediment to, justice that encompasses all of the factual
predicates for a finding of perjury.” Id. Here, the district court made a factual
finding that the jury had to completely reject Pedron’s testimony in order to find
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him guilty. This finding -- which was not clearly erroneous -- encompassed the
factual predicates of perjury, and therefore, there was no error, plain or otherwise,
in the district court’s application of the enhancement.
Turning to the ultimate sentence imposed, our reasonableness review
consists of two steps. Pugh, 515 F.3d at 1190. First, we must “‘ensure that the
district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence --
including an explanation for any deviation from the Guidelines range.’”
Id. (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)).2 If we conclude that
the district court did not procedurally err, we must consider the “‘substantive
reasonableness of the sentence imposed, under an abuse-of-discretion standard,’”
based on the “‘totality of the circumstances.’” Id. (quoting Gall, 128 S. Ct. at 597).
“The party who challenges the sentence bears the burden of establishing that the
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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sentence is unreasonable in the light of both th[e] record and the factors in section
3553(a).” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal
quotation omitted).
Rather than disputing the substantive reasonableness of his sentence, Pedron
primarily argues that the district court committed procedural error by failing to
expressly apply the § 3553(a) factors. However, “the district court need only
acknowledge that it considered the § 3553(a) factors, and need not discuss each of
these factors in either the sentencing hearing or in the sentencing order.” United
States v. Amedeo, 487 F.3d 823, 833 (11th Cir.), cert. denied, 128 S. Ct. 671(2007) (internal quotation and punctuation omitted); United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005) (“nothing in Booker or elsewhere requires the
district court to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors”). In this case, the
district court correctly calculated Pedron’s guidelines range after applying the §
3C1.1 enhancement; it stated that the guidelines were advisory, and considered the
parties’ arguments and the statutory factors; it noted that Pedron had a lengthy
criminal history and that he was a fugitive from justice for ten years; and it then
made a downward variance by two offense levels, sentencing Pedron to 175
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months’ imprisonment, inside the advisory guidelines range of 151-188 months.3
Accordingly, Pedron has not shown that his sentence was unreasonable, nor that
the district court committed any error, much less plain error, in imposing it.
AFFIRMED.
3
See Rita, 127 S. Ct. at 2462 (holding that a court of appeals may afford a presumption
of reasonableness to a within-Guidelines sentence); United States v. Campbell, 491 F.3d 1306, 1314
n.8 (11th Cir. 2007) (noting that, although we have not normally afforded a within-Guidelines
sentence a presumption of reasonableness, the Rita decision calls that policy into question).
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