United States v. Jorge Pineiro

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16044 ELEVENTH CIRCUIT
APRIL 21, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-20520-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE PINEIRO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 21, 2011)
Before EDMONDSON, WILSON and FAY, Circuit Judges.
PER CURIAM:
Jorge Pineiro appeals his convictions for drug conspiracy and substantive
drug offenses, 21 U.S.C. §§ 841(a)(1), 846, and 963. No reversible error has been
shown; we affirm.
Trial testimony revealed that Pineiro worked for United Parcel Service
(“UPS”) as a cargo handler at the Miami International Airport. Authorities with
UPS had been alerted to a suspicious package aboard a cargo plane arriving in
Miami from the Dominican Republic. With the aid of surveillance cameras,
authorities discovered that Pineiro had removed the package from the tarmac, hid it
in a grocery bag under a bag of potato chips, and put it in his car. Pineiro’s
codefendants (two of his fellow coworkers) later removed the package from
Pineiro’s car and exited the airport in two separate cars. Law enforcement officers
conducted a traffic stop and discovered that the package contained 2,883 grams of
cocaine.
At trial, Immigration and Customs Enforcement special agent Marco Suarez
testified for the government. Suarez had interviewed Pineiro after arresting him
and issuing him Miranda1 warnings. In pertinent part, Suarez testified (1) that
Pineiro told him that one of his codefendants had asked Pineiro to remove the
package and (2) that, although the codefendant had not told him what was in the
package, Pineiro thought the package contained either drugs or money. On redirect
examination, Suarez answered that he had no way to verify whether Pineiro’s
1
Miranda v. Arizona, 86 S. Ct. 1602, 1624 (1966).
2
statement about his lack of knowledge of what was in the package was true: “All I
had was the statement he made to me.” Pineiro objected to this line of questioning
and moved for a mistrial, arguing that Pineiro’s lack of knowledge could be
verified by the statements of his codefendants, who had admitted that they did not
tell Pineiro what was in the package.
On appeal, Pineiro argues that the district court abused its discretion in
denying his motion for a mistrial because the government improperly questioned
Suarez on re-direct examination about Pineiro’s post-arrest statement that he did
not know the contents of the package. He contends that the questioning produced
the erroneous and false conclusion that no corroboration existed for the statement.
We review the district court’s denial of a mistrial motion for an abuse of
discretion. United States v. Ettinger, 344 F.3d 1149, 1161 (11th Cir. 2003). A
defendant is entitled to a mistrial only upon a showing of substantial prejudice.
United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999). In addition,
prosecutorial misconduct requires a new trial only if we conclude that the
prosecutor’s remarks (1) were improper and (2) prejudiced defendant’s substantial
rights. United States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998).
We discern no abuse of discretion here and conclude that the government
made no improper remarks. That Pineiro’s codefendants may not have expressly
3
informed Pineiro that the package contained cocaine does not fully corroborate
Pineiro’s statement that he did not know personally what the package contained.
The government never implied that the codefendants had implicated Pineiro or that
the codefendants had contradicted Pineiro’s statement that his codefendant had
never told him of the package’s contents. Thus, Suarez’s statement that no
additional evidence showed Pineiro’s complete lack of knowledge about the
contents of the package other than Pineiro’s own statement was not false or
misleading.
More important, and even assuming the question was improper, we cannot
say the government’s line of questioning prejudiced Pineiro’s substantial rights
given the wealth of evidence against him. Video evidence showed Pineiro
removing the package and hiding it in a grocery bag before taking it to his car.
And Pineiro told Suarez that he thought the package contained money or drugs. In
addition, Suarez testified as an expert that the package felt like “three kilograms of
brick narcotics that were bound together very tightly with tape.” See United States
v. Rouco, 765 F.2d 983, 992 (11th Cir. 1985) (explaining that prejudicial testimony
is less likely to mandate a mistrial when there is other significant evidence of guilt
that reduces the likelihood that the otherwise improper testimony had a substantial
4
impact on the verdict of the jury).2
AFFIRMED.
2
Because we conclude that no improper remark or substantial prejudice occurred, we
reject Pineiro’s argument that the government’s line of questioning improperly shifted the
burden to him to prove his lack of knowledge. See United States v. Simon, 964 F.2d 1082, 1086
(11th Cir. 1992) (recognizing that a prosecutor’s comment may be so prejudicial as to shift the
burden of proof and may require reversal if the misconduct is so pronounced and persistent that
it permeates the entire atmosphere of the trial). And even still, the district court properly
instructed the jury on the government’s burden of proof.
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